THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 

^       Gift  Of 
Benoer-Moss  Co. 


A  TREATISE 


ON 


The  Federal  Employers 

Liability  and  Safety 

Appliance  Acts 


And  on  the  Federal  Statutes  on  Hours  of  Labor ^ 

including  Interstate  Commission's  Rules 

and  Diagrams  for  Equipment  of  Cars 


THIRD  EDITION 


BY 

W.  W.  THORNTON 

Of  the  Indianapolis  Bar,  Author  of  Sherman  Anti-Trust 
Law,  Pure  Food  and  Drugs,  etc. 


CINCINNATI,  OHIO 

THE  W.  H.  ANDERSON  CO. 

1916 


T 


COPYRIGHT,  1009, 
BY 

THE  W.  H.  ANDERSON  CO. 


COPYRIGHT,  1912, 
BY 

THE  W.  H.  ANDERSON  CO. 


COPYRIGHT,  1915, 
BY 

THE  W.  H.  ANDERSON  CO. 


^^ 


^ 


PREFACE  TO  THIRD  EDITION. 


It  is  now  more  than  three  years  since  the  last  edition  of 
this  work  was  issued.  Meantime  the  courts  have  been  very 
busy  with  the  statutes  lierein  treated,  especially  with  the 
Employers'  Liability  Act.  Over  500  decisions  have  been 
decided  wherein  were  construed  many  of  its  provisions,  of 
which  more  than  thirty  are  by  the  Supreme  Court  of  the 
United  States.  A  number  of  very  imi3ortant  cases  have 
reached  the  United  States  Supreme  Court,  and  many  im- 
portant questions  in  dispute  have  been  settled  by  that  tri- 
bunal. When  the  first  edition  of  this  work  was  issued  it 
was  a  pioneer,  and  the  author  often  had  only  his  own 
views  to  rely  upon ;  and  this  was  also  true  in  many  in- 
stances when  the  second  edition  was  given  the  public. 
Many  of  his  views  have  been  accepted  by  the  courts — 
some  of  them  have  not.  Many  questions  he  never  devel- 
oped in  these  former  editions,  because  there  was  nothing 
suggesting  them  to  him ;  but  since  then  the  courts  have 
decided  many  questions  not  contained  in  the  former  edi- 
tions. It  cannot  be  said,  therefore,  that  even  the  last 
edition  can  be  implicitly  relied  upon ;  and  for  the  prac- 
titioner having  a  new  question  that  edition  is  inadequate 
to  meet  his  needs.  It  is  therefore  eminently  fit  that  a  new 
edition  be  issued  to  meet  the  growing  demands  of  the  pro- 
fession. 

Congress  has  taken  over  all  litigation  wherein  an  em- 
ployee of  an  interstate  railroad  is  injured  while  both  he 
and  his  employer  are  engaged  in  interstate  commerce, 
covering  at  least  eighty  percent  of  railroad  employees,  and 
every  railroad  in  the  United  States;  and,  strange  as  it  may 
seem  to  be,  this  fact  has  not  found  a  lodging  place  in  the 
minds  of  many  attorneys,  if  the  writer  may  judge  from 

iii 


67074G 


JV  PREFACE   TO   THIRD   EDITION. 

his  personal  contact  with  many  of  them.  Many  others 
■who  appreciate  the  force  of  the  act,  are  yet  unfamiliar 
■with  its  provisions  in  detail,  and  the  practice  under  it. 
The  rule  of  comparative  negligence  is  unfamiliar  to  a 
great  number  of  members  of  the  profession. 

There  is  a  small  percentage  of  members  of  the  profes- 
sion -u'ho  think  the  Federal  Supreme  Court  has  broken  do"wn 
to  a  very  considerable  extent  the  force  of  the  statute's  pro- 
visions in  its  decisions  on  the  doctrine  of  the  assumption  of 
risk  wherein  it  holds  that  that  doctrine,  except  in  two  or 
three  instances,  is  still  applicable  to  interstate  employees. 
That  view  of  these  decisions  is  unwarranted.  It  is  true  the 
doctrine  of  assumption  of  risk  still  applies  to  such  em- 
ployee, but  with  no  greater  force,  nor  to  any  greater  extent, 
than  it  did  before  the  statute  was  enacted.  By  the  enact- 
ment of  the  statute  the  interstate  employee  has  lost  nothing ; 
but  on  the  contrary  he  has  very  materially  gained.  All 
that  he  has  to  show  is  that  his  injury  is  materially  and  ap- 
proximately due  the  negligence  of  his  employer  in  order  to 
recover;  and  he  is  not  charged  with  the  burden  to  show 
that  his  own  negligence  did  not  materially  contribute 
thereto. 

The  Safety  Appliance  Acts  and  even  the  Hours  of  Service 
Act  are  the  handmaids,  not  to  say  anything  of  the  Ash  Pan 
Act,  of  the  Employers'  Liability  Act.  These  statutes  have 
been  included  in  the  present  work,  and  it  is  believed  with 
decided  assistance  to  the  profession. 

There  is  no  volume  that  brings  all  these  several  statutes 
together,  grouping  them  and  the  many  decisions  construing 
them  in  a  single  work.  So  far  as  the  author  knows,  no  work 
covers,  or  pretends  to  cover,  the  Safety  Appliance  and 
Hours  of  Service  Acts,  except  a  small  volume  in  the  way 
of  a  digest  issued  by  the  Interstate  Commerce  Commission, 
a  work  little  known  outside  the  circle  of  railroad  attorneys. 

All  decisions  concerning  the  subject-matter  of  this  work 
j)u]»lislH'd  prior  to  November  1,  1915,  the  date  of  going 
to  press,  luiv(!  been  carefully  examined,  considered  and 
'it'd.  W.  W.  THORNTON. 

hMli;iii;i|tolis.    hid.,    Ndveitiber   1,  lillf). 


PREFACE  TO  SECOND  EDITION. 


It  is  now  three  years  since  the  first  edition  of  this  work 
was  issued.  The  Federal  Employes'  Liability  statute  was 
then  less  than  a  year  old ;  and  while  there  were  several 
decisions  construing  several  provisions  of  the  unconstitu- 
tional Act  of  1906,  there  was  none  construing  this  Act  of 
1908.  The  ground,  therefore,  to  be  ploughed  was  virgin  soil. 
Since  then  this  Act  of  1908  has  been  before  quite  a  number 
of  courts,  whose  opinions  construing  it,  in  many  of  its  parts, 
have  been  published. 

The  constitutionality  of  the  Statute  has  been  firmly 
settled.  The  only  dissenting  voice  is  that  of  the  Supreme 
Court  of  Connecticut,  whose  decision  has  been  very  severely 
criticised  by  the  courts,  and  in  an  able  report  of  the  Judi- 
ciary Committee  of  the  Senate  of  the  United  States  in  1910. 
The  Statute  was  amended  in  1910  in  two  important  in- 
stances. There  is  no  longer  any  serious  doubt  that,  under 
this  Statute  as  amended,  state  courts  now  have  jurisdiction 
over  actions  brought  under  this  statute  to  recover  damages. 

The  courts  also  have  fully  settled  the  question  that 
an  interstate  employee,  in  suing  an  interstate  railroad  com- 
pany, to  recover  damages  for  injuries  he  has  sustained 
while  in  the  employment  of  such  company,  is  entitled  to 
bring  his  action  under  this  Statute,  and  that  such  railroad 
company  can  not  insist  its  lia^bility  shall  be  measured  by 
a  statute  of  the  state  wherein  the  accident  occurred.  And 
possibly  the  courts  will  hold  that  such  an  employee  must 
bring  his  action  under  this  Statute,  and  not  under  a  state 
statute.    This  question,  however,  remains  to  be  settled. 

As  nearly  all  of  the  employees  engaged  in  moving  traffic 
of  a  railroad  company  are  interstate  employees,  the  im- 
portance of  this  Statute  is  quite  manifest  to  all  who  are  con- 
cerned in  litigation  to  recover  damages  for  injuries  sustained 
by  a  railroad  employee. 


PREFACE   TO    SECOND   EDITION, 

Since  this  work  was  first  published,  there  have  been  many 
decisions  construing  the  Safety  Appliance  Act.  Its  construc- 
tion has  been  settled  by  three  decisions  of  the  United  States 
Supreme  Court,  and  its  constitutionality  determined.  Ac- 
cording to  two  decisions  of  that  court,  this  Statute  applies 
to  intrastate  ears  moved  in  a  sepai'ate  train  over  a  railroad, 
which  is  "a  highway  of  interstate  commerce;"  and  that  the 
Statute,  as  thus  construed,  is  constitutional.  Any  one  can 
readily  see  that  this  is  a  far-reaching  result  in  constitutional 
law. 

A  numher  of  opinions  of  eourts  were  inserted  in  the  first 
edition  of  this  work  as  unreported  decisions  or  opinions. 
Since  this  work  was  first  published  most  of  the  opinions 
have  been  published  in  the  Federal  Reporter,  but  it  has  been 
deemed  advisable  by  the  Author  to  retain  these  opinions, 
giving  the  volume  and  page  of  that  publication,  Avhere  they 
can  be  found.  However,  a  number  of  opinions  are  inserted 
in  this  second  edition,  which  have  not  yet  been  published, 
and  which  probably  never  will  be.  The  Interstate  Com- 
merce Commission  have  kindly  furnished  these  to  the 
Author. 

The  Federal  Statute  on  hours  of  labor  for  interstate  em- 
ployees has  been  discussed  in  the  last  chapter  of  this  work. 
The  decisions  construing  it  are  of  rather  recent  date. 

A  number  of  states  have  adopted  statutes  A^dping  out  the 
defense  of  contributory  negligence, — following  the  Federal 
Statute — and  the  author  has  collected  these  in  the  last  ap- 
pendix to  this  work. 

The  Statute  of  the  United  States  concerning  hours  of  labor, 
interstate  employees  or  interstate  railroads,  is  discussed  at 
length. 

W.  W.  THORNTON. 

Indianapolis,  February  1,  1912. 


TABLE  OF  CONTENTS. 


PART  I. 
FEDERAL  EMPLOYERS'  ACT. 

CHAPTER  I. 

Abolition  of  Fellow  Servant  Rule. 
section  page 

1.  Object  and  purpose  of  Act  of  1908 1 

2.  Rule  of  fellow  servant  in  European  countries 4 

3.  Quebec  and  Mexico 6 

CHAPTER  II. 

Constitutionality  Statute — Effect  on  State  Legislation. 

4.  Power  of  Congress  to  increase  liabilities  of  master 7 

5.  Authorizing  a  recovery  for  negligent  act  of  fellow  servant 8 

6.  Basis  of  rule  of  master's  nonliability  for  negligence  of  fellow  servant .  8 

7.  Validity  of  statute  allowing  a  recovery  for  an  injury  occasioned  by  a 

fellow  servant's  negligence 11 

8.  Validity  of  statute  as  to  past  contracts  of  employment 14 

9.  Limiting  statute  to  employees  of  railroad  companies,  Fourteenth 

Amendment 15 

10.  VaUdity  of  statute  classifying  instrumentalities 18 

11.  Power  of  Congress  to  enact  Statute  of  1908 19 

12.  Constitutionality  of  Wisconsin  and  Nebraska  statute 23 

13.  Invalidity  of  Act  of  1906 24 

14.  The  parts  of  Act  of  1906  rendering  it  void 25 

15.  Congress  can  only  legislate  concerning  interstate  business 27 

16.  Interrelation  of  interstate  and  intrastate  commerce  as  effecting  con- 

stitutionality of  act 29 

17.  Effect  of  Act  of  1908  on  state  legislation 29 

18.  Effect  of  Act  of  1908  on  state  legislation,  continued 31 

19.  Result  of  decisions 34 

20.  Effect  of  repeal  of  federal  statute 36 

21.  Must  interstate  employee  bring  his  action  on  the  statute? 36 

22.  Act  of  1906,  vahdity  in  District  of  Columbia  and  territories 40 

23.  Construction  of  statute 40 

vii 


Vlll  TABLE    OF    CONTENTS.  " 

SECTION  PAGE 

24.  State  courts  must  follow  federal  dcisions — Appeal 42 

25.  In  paria  materia  with  Safetj'  Appliance  Acts 42 

CHAPTER  III. 

To  What  Railroads  Statute  Applies. 

26.  Carrier  within  territories 43 

27.  Carriers  engaged  in  interstate  commerce 43 

28.  Branch  railroad 47 

29.  Logging  railroad 47 

30.  Common  carriers 49 

31.  Cut-off  not  yet  devoted  to  interstate  traffic — Working  on  bridge.  .  50 

32.  Interstate  train  of  empty  cars  broken  up  and  afterwards  individual 

cars  sent  to  state  points 52 

33.  Interurban  and  street  railway  com,mon  carriers 53 

34.  While  engaging  in  interstate  commerce  between  the  states 54 

35.  Illustrations  on  interstate  commerce  transactions 57 

36.  Two  companies  operating  over  same  railroad 59 

37.  Lessor  and  lessee 60 

CHAPTER  I\'. 
To  What  Employees  Statute  Applies. 

38.  Only  liable  to  its  own  employees 61 

39.  What  employee  may  bring  his  action  upon  the  statute 62 

40.  Test  of  employee's  right  to  recover 69 

41.  Effect  on  the  course  and   current  of  interstate  commerce— Instru- 

mentalities of  interstate  commerce 70 

42.  Work  must  be  so  closely  connected  with  interstate  commerce  as  to 

be  part  of  it 71 

43.  Intent  to  engage  in  interstate  commerce  in  the  future 71 

44.  Incidental  absence  from  scene  of  work 72 

45.  Repairing  instrumentalities  of  interstate  commerce 72 

46.  Original  construction  of  interstate  commerce  instrumentalities 74 

47.  Impeding  the  progress  of  interstate  commerce 75 

48.  Track  repairer 76 

49.  Statute  includes  everybody  Congress  could   include;    same  person 

in  different  capacities;  track  repairer;  telegraph  operator 78 

50.  Car  repairer  in  switching  yard 80 

51.  Laying  additional  track  on  bridge;  injury  by  interstate  train 82 

52.  Loading  niilroad  iron  rail.s — Burden 82 

53.  "While"  railroad  was  "engaging  in"  interstate  commerce 83 

54.  When  an  employee  enters  on  his  work,  or  is  entitled  to  the  protection 

of  the  Btatute                                                                  85 


TABLE    OF   CONTENTS.  IX 

SECTION  PAGE 

55.  When  employee  enters  on  interstate  work 88 

56.  Injured  servant  employed  in  both  interstate  and  intrastate  com- 

merce       91 

57.  Employees  covered  by  statute 93 

58.  Other  employments  incidentally  connected  with  interstate  trans- 

portation       94 

59.  Working   on   bridge — Repairing   telegraph   lines— Installing  block 

system 98 

60.  Employees   repairing   interstate   instrumentalities   are   covered   by 

statute : 100 

61.  Going  to  and  from  work 101 

62.  Pullman  car  employees — Express  agent — Railroad  surgeon's  n)al- 

practice 102 

63.  Cases  holding  employee  not  engaged  in  interstate  commerce  when 

injured 105 

64.  Switching    crew   moving   interstate    commerce— Intention    to    im- 

mediately move  interstate  commerce 108 

65.  Relation  between  the  employment  and  the  accident 109 

66.  Who  must  inflict  injury  to  render  railway  company  liable Ill 

67.  Interstate  employee  injured  by  negligence  of  interstate  employee.  .   Ill 

68.  Nebraska  statute 116 

69.  Validity  of  statute  allowing  a  recovery  for  an  injury  occasioned  by 

an  interstate  employee 117 

70.  Interstate  engineer  of  interstate  railroad  hauling  intrastate  train — 

Going  to  work 125 

CHAPTER  V. 

Contributory  and  Comparative  Negligence. 

71.  Contributory  negligence — Statute 129 

72.  Contributory  negligence  as  a  defense 130 

73.  Contributory  neghgence  defined 131 

74.  Common-law  rule  of  contributory  negligence  preventing  a  recovery.  131 

75.  Definitions  of  degrees  of  negligence 132 

76.  Comparative  negligence 133 

77.  Origin  of  rule  of  comparative  negligence 133 

78.  Georgia  statutes 134 

79.  Differs  from  federal  statute 135 

80.  Georgia  statutes  construed 136 

81.  Contributory  negligence  of  plaintiff  before  defendant's  negligence 

began 138 

82.  Burden  on  plaintiff  to  show  freedom  from  his  own  fault 140 

83.  Charge  to  jury  under  Georgia  Code 141 

84.  Recovery  by  a  railway  employee 142 


X  TABLE    OF    CONTENTS. 

SECTION  PAGE 

85.  Widow  recovering  for  death  of  her  husband — Georgia  statute — 

Contributory  negligence  of  deceased 142 

86.  Apportionment  of  damages 143 

87.  Epitome  of  Georgia  cases 144 

88.  Comparative  negligence  in  Illinois 148 

89.  Negligence  a  relative  term 150 

90.  Illinois  rule  extended 151 

91.  Ordinary  care  wanting — Plaintiff's  negligence  slight 151 

92.  Want  of  ordinary  care  defeats  a  recovery 153 

93.  Failure  to  exercise  ordinary  care  more  than  slight  negligence 155 

94.  Ordinary  and  slight  negligence  in  their  popular  sense 155 

95.  Mere    preponderence    of    defendant's    negligence    not    sufGcient — 

Defendant's  clearly  exceeding  plaintiff's  negligence 156 

96.  Gross  and  shght  neghgence  distinguished 157 

97.  Plaintiff's  negligence  compared  with  defendant's 159 

98.  Plaintiff's  neghgence  compared  with  defendant's 162 

99.  Willful  injury  by  defendant — Slight  negligence  of  plaintiff 164 

100.  Mere  preponderence  of  negligence  against  defendant  not  suflBcient. .   164 

101.  Jury  must  compare  the  negligence  of  the  defendant  with  that  of  the 

plaintiff 165 

102.  Instructions  must  require  comparison 165 

103.  Illustration — Engine  striking  hand  car — Unlawful  speed 166 

104.  Illustration — Mail  crane  striking  fireman 166 

105.  Admiralty  suits — Apportionment  of  damages 167 

106.  Origin  of  admiralty  rule 169 

107.  Rule  in  admiralty  commended 171 

108.  Difficulty  of  apportioning  damages 172 

109.  Assumption  of  risk 173 

110.  Contributory  negligence  does  not  prevent  a  recovery— How  damages 

are  apportioned 173 

111.  Negligence  of  plaintiff  necessarj'  to  concur  with  defendant's  to  pro- 

duce the  injury 175 

112.  Court  cannot  lay  down  exact  rules  for  apportionment  of  damages.  .  .    175 

113.  Statute  does  not  adopt  a  theory  of  slight,  ordinary  and  gross  negli- 

gence    177 

114.  Directing  the  verdict — Due  care 177 

115.  Court  telling  jury  particular  acts  constitute  contributory  negligence.  179 

116.  Rules  of  contributory  negligence  must  be  considered 180 

117.  Injury  occasioned  by  defendant   having    violated   a   safety   device 

statute 180 

118.  Presenting  the  defense  of  contributory  negligence — Burden ISO 

119.  When  contributory  negligence  docs  not  diminish  damages 182 

120.  Examples  under  Wisconsin  statute 182 

121.  Practice  under  Wisconsin  statute 197 


TABLE    OF    CONTENTS.  XI 


CHAPTER  VI. 

Assumption  of  Risk, 
section  page 

122.  Federal  statute — Assumption  of  risk 198 

123.  Exceptions— Statute 198 

124.  Distinction  between  assumption  of  risk  and  contributory  negligence — 

Unknown  risk 199 

125.  To  what  "statute"  reference  is  made 200 

126.  Assumption  of  risk  only  abolished  in  part 202 

127.  The  Horton  case  as  an  example  of  assumption  of  risk — Instructions.  205 

128.  Violation  of  federal  statute  enacted  for  safety  of  employees 207 

129.  Negligence  of  carrier  as  a  fellow  servant 208 

130.  Defective  cars,  engines,  tracks  and  appliances 210 

131.  Question  of  risk  assumed 211 

CHAPTER  VII. 
Death  by  Wrongful  Act. 

132.  Statute 213 

133.  Beneficiary  or  widow  cannot  maintain  action 214 

134.  How  question  raised  that  administrator  must  sue 214 

135.  Judgment  under  state  statute  or  at  common  law  as  a  bar  to  action 

under  federal  statute 215 

136.  Substituting  administrator  for  beneficiary   in   action   brought   by 

latter — Statute  of  limitations 215 

137.  Action  by  foreign  personal  administrator 217 

138.  No  action  at  common  law 217 

139.  Constitutionality  of  statute  allowing  recovery  for  beneficiary 218 

140.  Deceased  without  right  to  recover 218 

141.  Failure  of  deceased  to  bring  action 219 

142.  Instantaneous  death 219 

143.  Survival  of  injured  employee's  cause  of  action 219 

CHAPTER  VIII. 

Beneficiaries. 

144.  Statute 221 

145.  Order  in  which  beneficiaries  entitled  to  recover  benefits 221 

146.  No  beneficiary  in  existence  or  designated  by  the  statute 222 

147.  Separation  of  deceased  employee  and  his  wife — Steps  towards  secur- 

ing a  divorce 223 

148.  No  husband  or  widow  surviving 223 

149.  Next  of  kin  dependent  on  employee 223 


Xll  TABLE    OF   CONTENTS. 

SECTION  PAGE 

150.  Next  of  kin  determined  by  state  statute 225 

151.  Who  are  dependent  on  deceased 226 

152.  Bastard 227 

153.  Emancipated  child 228 

154.  Adopted  child 228 

155.  Posthumous  child 228 

156.  Beneficiaries  must  survive  deceased — Complaint 228 

157.  E.xistence  of  a  beneficiary  a  jurisdictional  fact 229 

158.  Statute  of  limitations 230 

159.  Who  brings  action  in  case  of  death 233 

160.  Judgment  recovered  by  deceased 233 

161.  Costs 234 

162.  Suit  by  poor  person 234 

163.  Death  of  beneficiary 234 

164.  Declarations  of  deceased 235 

164a.  Ahen  beneficiarj' 235 

CHAPTER  IX. 

Damages. 

165.  Caution   to   be  observed   in   construing   statute   before   and   after 

amendment  of  1910 236 

165a.  Federal  statute  controls  measure  of  damages 236 

166.  Emploj'ee  recovers  actual  but  not  punitive  damages 237 

167.  Fatal  injury  before  the  amendment  of  1910 237 

168.  Pecuniarj-  damages  only  given  to  beneficiary 239 

169.  Pecuniary  loss  defined 240 

170.  Rule  for  measurement  of  damage  differs  according  to  relation  of 

beneficiary 242 

171.  Damages  by  way  of  solatium 243 

172.  Minor  child's  damages 244 

173.  Measure  of  damages 245 

174.  Use  of  annuity  tables 250 

175.  Interest 250 

176.  Damages  not  part  of  estate 250 

177.  Amount  of  damages — Illustrations 251 

178.  Contributory  negligence  reducing  the  amount  of  recovery 253 

178a.  Instructions  on  contributory  negligence,  reducing  damages  other- 
wise recoverable 256 

179.  Apportionment  of  damages  among  the  beneficiaries 258 

180.  Distribution  of  proceeds  of  judgment 259 

181 .  Survival  of  action 259 

182.  Damages  recovcr.ihlf!  wlien  there  is  a  survival  of  deceased's  right 

of  action ...                   262 


TABLE    OF    CONTENTS.  XIU 


CHAPTER  X. 

Release  of  Claim  of  Damages, 
section  page 

183.  Statute 265 

184.  What  contracts  of  release  are  forbidden 265 

185.  Constitutionality  of  section  five 267 

186.  Receipt  of  relief  money 272 

187.  Contract  for  future  release  not  binding  on  beneficiaries 273 

188.  Release  by  beneficiary 273 

CHAPTER  XI. 
In  What  Courts  Suit  JNIay  Be  Brought. 

189.  Plaintiff  may  bring  suit  in  federal  court 275 

190.  Jurisdiction  of  state  courts 276 

191.  Congress  conferring  jurisdiction  on  a  state  court 280 

192.  Removal  of  case  to  federal  court 287 

193.  Joinder  of  action  under  federal  statute  and  a  common  law  action.  .  .  288 

194.  Where  actions  must  be  brought 289 

CHAPTER  XII. 
Pleading  and  Practice. 

195.  Neghgence  of  interstate  carrier  basis  of  action — Two  branches  of 

statute 290 

196.  Wilful  injury 292 

197.  No  new  right  given  employee 292 

198.  New  cause  of  action  created  for  beneficiaries 293 

199.  Local  practice  controls 293 

200.  Complaint  or  petition  by  employee 294 

201.  Allegations  plaintiff  and  defendant  engaged  in  interstate  commerce.  297 

202.  Complaint  for  beneficiaries 301 

203.  Joinder  of  causes  of  action 304 

204.  Requiring  plaintiff  to  elect 305 

205.  Amendment  of  complaint  to  fit  evidence — Statute  of  limitations.  . . .  306 

206.  Substituting  the  personal  representative  of  deceased  for  beneficiary — 

Statute  of  limitations 309 

207.  By  what  law  sufficiency  of  complaint  tested 310 

208.  Defense  is  governed  by  federal  statute 310 

209.  Pleading  a  defense — Contributory  negligence 311 

210.  Answer  of  statute  of  limitations 312 

211.  Venue 312 

212.  Variance 313 


XIV  TABLE    OF    CONTENTS. 

SECTION  PAGE 

213.  Notice  of  injury  received 314 

214.  Dismissed — Nonsuit — Directing  verdict 314 

215.  Evidence — Burden 315 

216.  Competency  of  witness 317 

217.  Instructions 317 

218.  Question  for  jury — Damages 319 

CHAPTER  XIII. 
Appeal  and  Writ  of  Error. 

219.  On  appeal  from  federal  court 320 

220.  Appeal  from  state  court  to  Federal  Supreme  Court 320 

221.  How  question  raised  to  secure  right  of  appeal 322 

222.  What  questions  can  and  cannot  be  faised  on  appeal 324 

223.  Amount  in  controversy 325 

224.  Penalty  assessed  against  appellant 325 

224a.  Remittitur  of  excessive  damages 325 


PART  II. 

SAFETY  APPLIANCE  ACTS. 

CHAPTER  XIV. 

Origin,  Object,  Constitutionality  and  Interpretation  of  Statute. 

225.  Origin  of  safety  appliance  act 329 

226.  Resolution  of  American  Railway  Association 332 

227.  Object  of  statute — Construction 332 

228.  Constitutionality  of  statute 334 

229.  Federal  control  of  interstate  commerce 337 

230.  Interpretation  of  statute 339 

231.  State  legislation  concerning  safety  appliances 340 

232.  Common  carrier  and  railroad  defined 344 

CHAPTER  XV. 
Use  In  Interstate  Traffic. 

233.  \\'hat  is  interstate  commerce — Test 346 

234.  What  is  interstate  commerce 347 

235.  Illusf  rations  of  interstate  commerce 349 

2.'»6.     Inlfrfcrritorial  commerce — .\ct  of  1903 351 

237.     L'.sc  of  car  forbidden 351 


TABLE    OF    CONTENTS.  XV 

SECTION  PAGE 

238.  "Haul",  "used"  and  "train"  defined 353 

239.  Inhibition  of  statute — Car  employed  in  interstate  traflSe 354 

240.  Car  in  use,  what  is 356 

241.  Empty  car  in  interstate  train 356 

242.  Hauling  or  using  car  not  loaded  with  interstate  traffic  in  interstate 

train 357 

243.  Interstate  car  on  interstate  railroad 358 

244.  Transportation  of  articles  of  interstate  commerce  for  an  independent 

express  company 362 

245.  Distance  defective  car  hauled 364 

246.  Switching  car 365 

247.  Belt  railroad— Terminal  road 367 

248.  Car  on  spur  track 368 

249.  "Used  in  moving  interstate  traffic" — Sending  car  to  repair  shop — 

IMaking  up  train 369 

250.  Hauling  car  not  essential  to  commission  of  offense — Use  of  car 370 

251.  Car  not  used  in  interstate  commerce 371 

252.  Interstate  car  in  "connection"  with  intrastate  car 371 

253.  Use  of  car  in  interstate  commerce 373 

254.  Temporary  suspension  of  transportation 374 

255.  Permitting  cars  to  be  hauled  over  its  lines 374 

256.  Defendant  hauling  car  over  another  company's  line  of  railway 375 

257.  Freight  designed  for  another  state — Not  yet  left  the  first  state 376 

258.  Intrastate  traffic — Narrow  gauge  railroad  wholly  within  state 376 

259.  Intrastate  railroad  engaged  in  carrying  interstate  commerce  articles.  378 

260.  United  States  against  Geddes  denied 380 

261.  Effect  of  the  case  of  Southern  Railway  Co.  against  United  States  on 

Geddes  and  Colorado  cases 390 

262.  Burden — Reasonable  doubt 392 

CHAPTER  XVI. 

Cars  and  Their  Eyuipment. 

263.  What  is  a  "car"  Vv'ithin  the  meaning  of  the  statute 395 

264.  Electric  cars 398 

265.  Empty  car — Car  used  in  moving  interstate  commerce 398 

266.  Empty  car  used  in  interstate  commerce 399 

267.  Proviso  to  Section  6 — Four-wheeled  and  logging  cars 400 

268.  Kind  of  couplers  to  be  used 400 

269.  "Without  the  necessity  of  men  going  between  the  ends  of  cars".  .  .  .  405 

270.  Both  ends  of  every  car  must  be  equipped  with  automatic  couplers.  .  407 

271.  Uncoupling 408 

272.  Erroneous  instructions  concerning  height  of  draw  bars 408 

273.  Construction  of  Section  5 409 


XVI  TABLE    OF    CONTENTS. 

SECTION  PAGE 

274.  InsufBcient  operation  of  coupler 410 

275.  Improper  operation  of  sufficient  coupler 410 

276.  Preparation  of  coupler  for  coupling 411 

277.  "M.  C.  B.  defect  card" 411 

278.  Receiving  an  improperly  equipped  foreign  car 411 

279.  Question  for  jury 412 

280.  When  a  federal  question  is  presented 412 

281.  State  statute  on  same  subject  applicable  to  intrastate  commerce.  .  .  .  414 

282.  Handholds— Through  trains 414 

283.  Handholds  on  roof  of  car — Sill  steps — Handbrakes — Ladders — Run- 

ning boards 415 

284.  Air  hose,  coupling  chain  and  apphances  obviating  necessity  for  hand- 

holds   416 

285.  What  is  and  is  not  a  handhold  a  question  for  the  jury — Expert  testi- 

mony— Personal  examination  by  jury 416 

CHAPTER  XVII. 
Repairs. 

286.  Degree  of  diligence  to  make  repairs 418 

287.  Use  of  diligence  to  discover  defects— Want  of  knowledge  of  defect .  .  420 

288.  Duty  to  maintain  car  in  repair  is  an  absolute  one 422 

289.  Presumption — Diligence  to  discover  defects  and  make  repairs  in 

transit 426 

290.  Distinction  between  an  action  to  recover  a  penalty  and  to  recover 

damages 435 

291.  Cars  in  transit — Construction  of  statute 435 

292.  Hauling  car  to  nearest  repairing  point 441 

293.  Destination  of  car  nearer  than  repair  shop 444 

294.  Removal  from  a  repair  point  without  statutorj-  repairs  Vjeing  made .  .  445 

295.  Repairing  cars  in  transit 446 

296.  Repairs  during  journey 449 

297.  Establishing  repair  shops  and  material 449 

298.  Knowledge  of  defect  not  an  element  of  offense 449 

299.  Failure  to  provide  or  repair  defective  handhold 451 

300.  Burden  to  show  right  to  remove  car 453 

301.  Use  of   "shims" — Common-law  duty  of  master  not  applicable — 

Fellow  servant's  neglect — Construction  of  statute — Handgrips.  .  455 

302.  Pvepairirig  couplers — Other  act  of  negligence  aiding  negligence  with 

reference  to  couplers 457 

303.  Failure  to  equip  train  with  brakes 458 

303a.  Air  brakes  on  tran.sfer  trains  from  one  yard  to* another — "Train" 

defined 462 

30.')b.  Trains  tocj  long  to  operate  with  air  brakes 466 


TABLE    OF    CONTENTS.  XVll 


CHAPTER  XVIII. 

Negligent  Injury, 
section  page 

304.  Use  of  car  without  automatic  coupler  is  negligence  per  se 467 

305.  Failure  to  equip  car  a  continuing  negligence 467 

306.  Who  may  bring  action  to  recover  damage — What  employees  are 

engaged  in  interstate  commerce 468 

307.  Proximate  cause  of  injury 469 

308.  Assumption  of  risk 471 

309.  Contributory  negligence  of  plaintiff 477 

310.  Contributory  negUgence  does  not  defeat  the  action 485 

311.  Two  acts  of  negligence  combining  to  produce  injury 486 

312.  State  courts  may  enforce  liability  for  negligence  incurred  under 

statute 487 

313.  Removal  of  case  to  federal  court 488 

314.  Judicial  notice 489 

315.  Pleading 489 

316.  Validity  of  section  concerning  release  from  liability 491 

317.  Statute  of  limitations 491 

CHAPTER  XIX. 

Action  to  FiEcover  Penalty. 

318.  "Suits"— Criminal   offense — Presumption   of   innocence — Burden — 

Reasonable  doubt 492 

319.  Action  to  recover  penalty  not  a  criminal  action 492 

320.  Joint  action 494 

321.  Government's  petition 494 

322.  Sufficiency  of  proof — Burden 495 

323.  E.xpert  testimony 498 

324.  Defendant  relying  on  exceptions  in  proviso  of  acts 498 

325.  Jury  trial 498 

326.  Directing  the  verdict 499 

327.  Amount  of  penalty 500 

328.  Penalty  for  failure  to  equip  with  grabirons 501 

329.  Writ  of  error 503 

330.  Twice  in  jeopardy 504 

CHAPTER  XX. 
Hours  of  Labor. 

331.  Statutory  provisions 505 

332.  Constitutionalitv  of  statute 506 


XVUl  TABLE    OF    CONTENTS. 

SECTION  PAGE 

333.  Validity  of  state  statute  covering  the  subject  of  federal  statute ....  508 

334.  Power   of   interstate   commerce   commission   to   require   reports — 

Validity  of  statute 510 

335.  Remedial — Purpose  of  act 512 

336.  Liability  absolute — Permit — Voluntary  action  on  part  of  employee.  .  513 

337.  Statute  liberally  construed 513 

338.  Analogous  to  other  remedial  statutes 514 

339.  Inability  of  carriers  to  compel  employees  to  act 514 

340.  Scope  of  act 514 

341.  Employees  subject  to  act 515 

342.  "Other  employee"  as  used  in  proviso  of  Section  2 515 

343.  "On  duty"  and  "off  duty"  as  defined  by  the  act 516 

344.  Casualty  or  unavoidable  accident— Act  of  God 517 

345.  Period  of  consecutive  hours 519 

346.  Hours  of  employment — Inspection  of  engine  by  engineer 521 

347.  Deducting  time  lost  by  failure  of  locomotive  to  get  up  steam — Bad 

coal 522 

348.  Deducting  time  lost  by  hot  boxes 522 

349.  Time  lost  by  side  tracking — Deducting 523 

350.  Time  train  delayed  cannot  be  deducted  from  period  of  time  of  service.  523 

351.  Delay  in  starting  caused  by  another  train 524 

352.  Comminghng  of  intrastate  and  interstate  duties 524 

353.  Fireman  or  other  employee  engaged. in  watching  engine 525 

354.  "Consecutive" — "Continuous" — Unbroken  intervals  of  time 527 

355.  Proviso  to  Section  2 — Towers — Places — Stations 530 

356.  Orders 531 

357.  Office  "continuously  operated,"  or  "operated  only  during  the  day- 

time"    531 

358.  Period  as  used  in  statute 533 

359.  Towerman  and  switchtender  using  telephone 533 

360.  Operator  at  local  stations 533 

361.  Emergency — Week 533 

362.  Provisos  of  Section  3 — Casualty — Unavoidable  accident 534 

363.  Terminal  as  used  in  act  defined 535 

364.  Suspension  of  operation  of  statute  for  a  given  trip 536 

365.  Occurrence  of  conditions  ordinarily  expected 537 

366.  Sudden  illness  of  operator 538 

367.  Economical  reasons 539 

368.  Action  to  recover  penalty — Civil  action — Pleadings 539 

369.  Defense 539 

369a.  Injury  to  employee — Right  of  action 539 

370.  Liability  to  pa.ssenger  for  delay 540 

.371.  Penalty,  measure -Fixing 540 

372.  Question  for  jury 541 

373.  Reports  to  interstate  commerce  commission 541 


TABLE    OF    CONTENTS.  XIX 


APPENDIX  A. 

PAGE 

Employers'  Liability  Acts 545 

Poor  person 549 

Employees  of  United  States 549 

Granting  to  certain  employees  of  the  United  States  the  right  to  receive  from 
it  compensation  for  injuries  sustained  in  the  course  of  their  employ- 
ment    552 

Accident  Reports  Act 555 

.Medals  of  Honor  Act 556 


APPENDIX  B. 

Report  of  House  Judicial  Committee  on  Federal  Employers'   Liability 

Act 557 

House  Report  on  Amendments  of  1910 570 

Senate  Report  on  Amendments  of  1910 576 


APPENDIX  C. 
English  Employers'  Liability  Act 599 

APPENDIX  D. 

Safety  Appliance  Acts 602 

Ladders,  Handbrakes,  Handholds 606 

Order  of  the  Interstate  Commerce  Commission  Increasing  the  Minimum 

Percentage  of  Brakes 610 

Order  of  Interstate  Commerce  Commission  on  the  Standard  Height  of 

Drawbars 611 

Order  of   Interstate   Commerce   Commission   Designating   the   Number, 
Dimensions,    Location    and    Manner   of   Appliances   of   Certain 

Safety  Appliances 612 

Order  of  Interstate  Commerce  Commission  Extending  the  Period  Within 
Which  Common  Carrier  Shall  Comply  Vv^ith  Safety  Appliance 

Acts 660 

Boiler  Inspection  Law 683 

Boiler  Inspection — Amendatory  Act 689 

APPENDIX  E. 

Ash  Pans 690 


XX  TABLE    OF    CONTENTS. 

APPENDIX  F. 

PAGE 

Hours  of  Labor  for  Railroad  Men 692 

Reports  of  Railroads  to  Interstate  Commerce  Commission 695 

Orders  of  the  Interstate  Commerce  Commission  Concerning  Hours  of 

Service 696 

Administrative  Rulings  of  the  Interstate  Commerce  Commission 698 

APPENDIX  G. 

Decisions  Unreported  Under  the  Safety  Appliance  Acts 703 

APPENDIX  H. 
Decisions  Under  the  Hours  of  Service  Act 918 

APPENDIX  I. 
Boiler  Inspection — Amendatory  Act 963 


TABLE  OF  CASES. 


[References  are  to  pages.] 


Abel  V.  Northampton,  etc.,  Co.  (212 

Pa.  St.  329;   61  Atl.  915),  223. 
Ableman    v.    Booth    (21    How.    506; 

62  U.  S.  169),  590. 
Ackerson    v.    Dennison    (117    Mass. 

407),  11. 
Adair  v.  United  States  (208  U.  S.  161; 

28  Sup.  Ct.  277;    52  L.  Ed.  436, 

reversing  152  Fed.  737),  22,  334, 

335. 
Adams  v.  Northern  Pac.  R.  Co.  (95 

Fed.  938),  273. 
Agnew  V.  United  States  (165  U.  S.  50; 

17  Sup.  Ct.  235;    41  L.  Ed.  624), 

431. 
Akeson  v.  R.  Co.  (106  Iowa,  54;    75 

N.  W.  676),  19. 
Alabama,  The  (92  U.  S.  695;    23  L. 

Ed.  763,  reversing  11  Blatchf.  482; 

Fed.  Cas.  No.  123),  172. 
Alabama,    etc.,    R.    Co.    v.    Coggins 

(88  Fed.  455;   32  C.  C.  A.  1),  144. 
Alexandria,    The    City    of    (17    Fed. 

390),  167. 
Alfson  V.  Bush  Co.  (182  N.  Y.  393; 

75  N.  E.  230),  223. 
Allen    V.    Tuscarora    Valley    R.    Co. 

(229  Pa.   St.   97;    78  Atl.  34;    30 

L.  R.  A.   (N.  S.)   1096;    140  Am. 

St.  714),  295,  297. 
Aluminum  Co.  v.   Ramsey   (32  Sup. 

Ct.  76),  17. 
America,  The  (92  IT.  S.  432),  168. 
American  Bridge  Co.  v.  Peden  (129 

Fed.  1004;   64  C.  C.  A.  581),  490. 


American  Ins.  Co.  v.  Canter  (1  Pet. 

511,  544;    7  L.  Ed.  242),  284. 
American  R.  Co.  v.  Birch  (224  U.  S. 

547;    32  Sup.  Ct.  603;    56  L.  Ed. 

879),  43,  201,   214,  233,  243,  246, 

249,  319. 
American  R.  Co.  v.  Didricksen  (227 

U.   S.   145;    33  Sup.   Ct.  224;    57 

L.  Ed.  456,  reversing  5  Porto  Rico, 

401,  427),  43,  217,  222,  224,  230, 

239,  240,  242,  248,  250,  260,  338. 
Americus   v.    Johnson    (2    Ga.    App. 

378;    58  S.  E.  518),  145. 
Americus,    etc.,    Ry.    Co.    v.    Luckie 

(87  Ga.  6;   13  S.  E.  105),  139,  141, 

144. 
Anderson  v.  Louisville  &  N.  R.  Co. 

(210  Fed.  689),  312. 
Anderson  v.  The  Ashebrooke  (44  Fed. 

124),  167. 
Andrews   v.    Hartford,    etc.,    R.    Co. 

(34  Conn.  57),  232. 
Anthony,    etc.,    Co.    v.    Ashby    (198 

111.  562;    64  N.  E.   1109),  248. 
Ariadne,    The    (13    Wall.    475;     20 

L.   Ed.   542,   reversing   7   Blatchf. 

211;    Fed.  Cas.  No.  525),  167. 
Armbruster  v.   Chicago   R.   I.   &   P. 

Ry.  Co.  (Iowa)  (147  N.  W.  337), 

35,  41,  42,  96,  305. 
Armitage    v.    Lancashire    &    G.    N. 

Co.  (4  Minton-Senhose  Workmen's 

Compensation  Cases,  5),   110. 
Asbell  V.  Kansas  (209  U.  S.  251;    28 

Sup.  Ct.  485;   52  L.  Ed.  778),  342. 
Asbestos,    etc.,    Co.    v.    Durand    (30 

Can.   S.  C.  285).   6. 

XX  i 


XXll 


TABLE    OF    CASES. 


[References  are  to  pages. 


Atchison,    etc.,    R.    Co.    v.    Fajardo 

(74  Kan.  314;    86  Pac.  301),  223. 
Atchison,    etc.,    Ry.    Co.    v.    Feehan 

(149  111.  202;   36  N.  E.  1036),  134. 
Atchison,    etc.,    R.    Co.    v.    Henry 

(57  Kan.  154;    45  Pac.  576),  133, 

134. 
Atchison,    etc.,    Ry.    Co.    v.    Mills 

(49  Tex.  Civ.  App.  349;   108  S.  W. 

480;    53  Tex.  Civ.  App.  359;    116 

S.  W.  852),  27,  40,  317. 
Atchison   Ry.   Co.   v.   Calhoun    (213 

U.  S.  1),  853. 
Atchison,    T.    &    S.    F.    Ry.    Co.    v. 

Pitts  (Okla.)  (145  Pac.  1148),  106. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  United 

States  (172  Fed.  1021;  96  C.  C.  A. 

664),  421,  426. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United 

States  (172  Fed.  194;    96  C.  C.  A. 

646),  468,  471,  493,  500,  501. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United 

States  (177  Fed.  114;    affirmed  220 

U.   S.   37;    30  Sup.   Ct.   362;    55 

L.  Ed.  361),  521. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  United 

States  (178  Fed.  12;    101  C.  C.  A. 

140),  540. 
Atchison,  T.  &  S.  F.  Ry.  Co.  v.  United 

States  (198  Fed.  637;   117  C.  C.  A. 

341),  365,  410,  465. 
Atchison,  T.  &  S.  F.  R.  Co.  v.  Wilson 

(48  Fed.  57;    1   C.  C.  A.  25;    4 

U.  S.  App.  25),  241. 
Atkins   v.    BuUard    (Ga.    App.)    (80 

S.  E.  220),  295,  304. 
Atlanta    v.    Harper    (129    Ga.    415; 

59  S.  E.  230),  146. 
Atlanta,   etc.,   R.   Co.   v.   Ayers   (53 

Ga.  12),  143,  146. 
Atlanta,  etc.,  R.  Co.  v.   Loftin   (86 

Ga.  43;   12  S.  E.  186),  144. 
Atlanta,  etc.,  R.  Co.  v.  O'Neil  (127 

Ga.  685;    56  S.  E.  986),  145. 


Atlanta,  etc.,  R,y.  Co.  v.  Weaver  (121 

Ga.  466;  9  S.  E.  291),  147. 
Atlanta,   etc.,   R.   Co.   v.   Wyly    (65 

Ga.   120),   143. 
Atlanta,  K.  &  N.  Ry.  Co.  v.  Gardner 

(122  Ga.  82;    49  S.  E.  818),   140. 
Atlantic  Coast  Line  R.  Co.,  Ex  parte 

(Ala.)   (67  So.  250),  36,  304,  305. 
Atlantic   Coast   Line   R.    Co.    (Ala.) 

(60  So.  693),  68. 
Atlantic  Coast  Line  R.  Co.  v.  Finn 

(195  Fed.  685),  266. 
Atlantic  Coast  Line  R.  Co.  v.  Jones 

(9   Ala.    App.   499;     63   So.   693), 

41,  68,  76,  92,  103,  304. 
Atlantic  Coast  Line  R.  Co.  v.  Jones 

(Ala.  App.)  (67  So.  632),  36. 
Atlantic  Coast  Line  R.  Co.  v.  Reaves 

(208  Fed.  141;    125  C.  C.  A.  599), 

69,  301. 
Atlantic    Coast    Line    v.     Riverside 

Mills  (219  U.  S.  186;  31  S.  C.  164; 

55  L.  Ed.  167;   31  L.  R.  A.  (N.  S.) 

7,    affirming    168   Fed.    990),    267, 

491. 
Atlantic  Coast  Line  R.  Co.  v.  United 

States  (168  Fed.   175,  184;    94  C. 

C.  A.  35,  affirming  153  Fed.  918), 

333,  335,  340,  421,  425,  470,  472, 

493,  494,  495,  500,  503,  886. 
Atlantic     Coast     Line     R.     Co.     v. 

Wharton  (207  U.  S.  328;    28  Sup. 

Ct.  121;    52  L.  Ed.  230),  21,  340. 
Atlantic  Coast  Line  R.  Co.  v.  Whit- 
ney   (63    Fla.    124;     56   So.    937), 

105,  107,  276,  426. 
Atlee  V.  Packet  Co.   (21  Wall.  389; 

22  L.  Ed.  619,  reversing  2  Dill,  479; 

Fed.   Cas.    No.    10341),    167,    172. 
Attorney-General    v.    Railroad    Cos. 

(35  Wis.  425),  12. 
Augusta,  etc.,  R.  Co.  v.  Killian  (79 

Ga.  236;  4  S.  E.  164),  143,  144. 


TABLE    OF   CASES. 


XXIU 


[References  are  to  pages.^ 


Augusta,  etc.,  R.  Co.  v.  McElmurry 

(24  Ga.  75),  146. 
Augusta,  etc.,  R.  Co.  v.  Snider  (118 

Ga.  146;   44  S.  E.  1005),  147. 
Augusta  S.  R.  Co.  v.  Wrightsville  & 

T.  R.  Co.  (74  Fed.  522),  58. 

B 

B.  &  C,  The  (18  Fed.  543),  168. 
Bacon  v.  Illinois  (227  U.  S.  504;    33 

Sup.  Ct.  299;    57  L.  Ed.  615),  49. 
Baird  v.  Northern  Pac.  R.   Co.   (78 

Wash.  67;    138  Pac.  325),  104. 
Baker  v.  Bolton  (1  Campb.  493),  217. 
Baltimore  &  O.   Ry.   Co.   v.   Collins 

(30  Ohio  Cir.  Ct.  App.  110),  519, 

540. 
Baltimore  &  O.  R.  Co.  v.  Interstate 

Commerce  Commission  (221  U.  S. 

612;    31  Sup.  Ct.  621;    55  L.  Ed. 

878),  267,  506,  507,  508,  512,  514, 

515,  525,  907,  921,  939. 
Baltimore  &  O.  R.  Co.  v.  Joy  (173 

U.  S.  226,  230),  575,  597. 
Baltimore  &  O.  R.  Co.  v.  Miller  (Ind.) 

(107  N.  E.  545),  267. 
Baltimore  &  O.  R.  Co.  v.  Whitacre 

(124  Md.  — ;    92  Atl.   1060),  41, 

69,  72,  101,  203,  204,  292,  315. 
Baltimore,   etc.,   R.   Co.   v.   Baldwin 

(144  Fed.  53),   223. 
Baltimore,    etc.,    R.    Co.    v.    Colvin 

(118    Pa.    St.    230;     12   Atl.    337; 

20  W.  N.  C.  531),  11. 
Baltimore,  etc.,   R.   Co.  v.   Holtman 

(25  Ohio  C.  C.  140),  274. 
Baltimore,    etc.,    R.    Co.    v.    Voight 

(176  U.   S.   498;    44   L.   Ed.   560; 

20  Sup.  Ct.  385),  12. 
Bank  v.  Bank  (108  Tenn.  374),  854. 
Bank  v.   Dalton   (9  How.  522,   528; 

13  L.  Ed.  242),  388. 
Bank  of  the  United  States  v.  Deveaux 

(5  Cranch,  61;    3  L.  Ed.  38),  284. 


Banks  v.  J.  S.  Schofield's  Sons  Co- 

(126  Ga.  667;  55  S.  E.  39),  145- 
Bankson    v.    Illinois    Cent.    R.    Co. 

(196  Fed.  171),  294,  304,  305. 
Barker  v.  Kansas  City,  M.  &  0.  Ry. 

Co.  (88  Kan.  767;    129  Pac.  1151; 

43  L.  R.  A.  (N.  S.)  1121),  59,  96, 

203,  205,  208,  311,  351. 
Barker  v.  Kansa.s  City,  M.&  O.  Ry. 

Co.   (Kans.)   (146  Pac.  358),  59, 

108,  109,  116. 
Barlow  v.  Lehigh  Valley  R.  Co.  (N. 

Y.)  (107  N.  E.  814),  59. 
Barlow  v.  Lehigh  Valley  R.  Co. 

(158  App.  Div.  768:  143  N.  Y. 

Supp.  1053),  95,  98. 
Barnes  v.  Columbia  Load  Co.  (107 

Mo.  App.  608;  82  S.  W.  203),  246. 
Barnes  v.  Ward  (9  C.  B.  392),  302. 
Barnum  v.  Chicago,  etc.,  R.  Co. 

(30  Minn.  461;   16  N.   W.  864), 

229,  302. 
Barton's  Hill  Coal  Co.  v.  Reid,  3 

Macq.  H.  L.  Cases,  266),  11. 
Bay  V.  Merrill  &  Ring  Lumber  Co. 

(211  Fed.  717),  297. 
Beaumont,  etc.,  R.  Co.  v.  Dilworth 

(16  Tex.  Civ.  App.  257;   94  S.  W. 

352),  245,  247,  248. 
Bechtel  v.  United  States  (101  U.  S. 

597),  927. 
Behrens   v.    Illinois   Central   R.   Co. 

(192  Fed.  581),  41,  126. 
Belanger  v.  Riopel  (3  Montreal  S.  C. 

198),  6. 
Belden  v.  Chase  (150  U.  S.  691;    14 

Sup.    Ct.    269;     37    L.   Ed.    1218, 

reversing  117  N.  Y.  637;  22  N.  E. 

963),  169. 
Belding  v.  Black  Hills  R.  Co.  (3  S. 

D.  369;  53  N.  W.  750),  261. 
Belt  Ry.  Co.  v.  United  States  (168 

Fed.  542;    93  C.  C.  A.  666;    Ap- 
pendix G),  57,   58,   59,  349,  350, 
367,  378,  399,  735. 
Bennett    v.    Lehigh    Valley    R.    Co. 

(197   Fed.   578),   103. 


XXIV 


TABLE    OF    CASES. 


[References  are  to  pages.] 


Bennett  v.   Southern  Ry.   (98  S.   C. 

319;   79  S.  E.  710),  237,  239,  240, 

242,  244,  292,  294,  316,  317. 
Bennett  v.  Worthington  (24  Ark.  487, 

494),  389. 
Benson   v.    Railway   Co.    (75   Winn. 

163;   77  N.  W.  798),  396. 
Best    V.    Town    of    Kingston     (106 

N.   C.   205;     10  S.  E.   997),   231. 
Betondo  v.  New  York  Central  &  H. 

R.  R.  Co.  (149  N.  Y.  Supp.  339), 

297,  310,  311. 
Betterly  v.  Boyne  City,  G.  &  A.  R. 

Co.   (158  Mich.  385;    122  N.  W. 

635;    16  Det.   Leg.   N.   628),   404. 
Binion  v.  Georgia,  etc.,  R.  Co.  (118 

Ga.  282;    45  S.  E.  276),   147. 
Birmingham,  etc.,  Ry.  Co.  v.  Gunn 

(141  Ala.  372;    37  So.  329),  302. 
Bixler  v.  Pennsylvania  R.  Co.   (201 

Fed.  553),  232,  233,  309. 
Bjornsea  v.  Northern  Pacific  Ry.  Co. 

(Wash.)  (146  Pac.  575),  110,  540. 
Black  V.  Charlestown  &  W.  C.  Ry. 

Co.  (87  S.  E.  241;    69  S.  E.  230), 

507,  519,  540. 
Blackburn  v.  Cherokee  Lumber  Co. 

(152  N.   C.  361;    67  S.  E.   915), 

405,  471. 
Blackstone  v.  Central  Ry.  Co.   (102 

Ga.  489;    31  S.  E.  90),  142. 
Blake  v.  Midland  Ry.  Co.  (18  Q.  B. 

93;    21  L.  J.  Q.  B.  233;    16  Jur. 

562),  244,  293. 
Blanchard   v.    Detroit,    etc.,    R.    Co. 

(139  Mich.  694;    103  N.  W.  170; 

12  Det.  Leg.  N.  30),  397,  414. 
Bledsoe  v.  Stokes  (1  Baxt.  312),  232. 
Bletz    V.    Columbia   Nat.    Bank    (87 

Pa.  92;    30  Am.  Rep.  345),  280. 
Blount   V.   Gulf,   etc.,   R.   Co.    (Tex. 

Civ.  App.)  (S2  S.  W.  305),  274. 
Blumenthal   v.   Craig   (81   Fed.   320; 

26  C.  C.  A.  427),  480. 


Board  v.  Toronto  Ry.  Co.   (22  Ont. 

App.    78,    affirming   24   Can.  Sup. 

Ct.  715),  404. 
Boldt  V.  New  York  Central  R.  Co. 

(18  N.  Y.  432),  90. 
Boldt  V.   Pennsylvania  R.   Co.    (218 

Fed.  367),  208. 
Bolton  v.  Frink  (51  Conn.  342;    50 

Am.  Rep.  24),  176. 

Bombolis  v.  Minneapolis  &  St.  L. 

R.  Co.  (Minn.)  (150  N.  W.  385), 

235,  294. 
Bond  v.  Seerace  (2  Duv.  576),  218. 
Bonnell  v.  Jowett  (24  Hun,  524), 

231. 
Bordeau  v.  Grand  Trunk  Ry.  Co. 

(2  Low.  Can.  L.  J.  186),  6. 
Bordentown,  The  (16  Fed.  270),  168. 
Boston  &  M.  R.  Co.  v.  Benson  (205 

Fed.  878;  124  C.  C.  A.  68),  291. 
Boston,  etc.,  R.  Co.  v.  McDuffev 

(25  C.  C.  A.  247;  51  U.  S.  App\ 

111;  73  Fed.  934),  6. 

Boston,    etc.,    R.    Co.    v.    State    (32 

N.  H.  215),  218. 
Bottoms  V.  St.  Louis  &  S.  F.  R.  Co. 

(179  Fed.  318)),  37,  .39,  289. 
Bouchard    v.    Central   Vt.    Ry.    Co. 

(87  Vt.  399;   89  Atl.  475),  36,  304. 
Boucher  v.  Wisconsin  Cent.  Ry.  Co. 

(141  Wis.   160;    123  N.  W.  913), 

177,  179,  196. 
Bowen    v.    Illinois    Central    R.    Co. 

(136  Fed.  306),  110. 
Bower  v.  Chicago  &  N.  W.  R.  Co. 

(96  Neb.   419;    148  N.   W.    145), 

207,  211. 

Bowerman  v.  Lackawanna,  etc.,  Co. 

(98  Mo.  App.  308;  71  S.  W.  1062), 

226,  248. 
Bowers  v.  Southern  Ry.  Co.  (10  Ga. 

App.  367;    73  S.  E.  677),  4,  203, 

208,  245,  253. 

Bowler  v.  Lane  (9  Met.  (Ky.)  311). 
303. 


TABLE    OF    CASES. 


XXV 


[References  are  to  pages.] 


Bowman  v.  Chicago,   etc.,   Ry.   Co. 

(125  U.  S.  465,  479,  480,  481,  484, 

485,    488,   489,    491,    507,    508;   8 

Sup.    Ct.    689,    1062;     31    L.    Ed. 

700),  387. 
Boyd  V.  Clerk  (8  Fed.  849),  231. 
Boyle   V.    Columbia,    etc.,    Co.    (182 

Mass.  93;   64  N.  E.  726),  226. 
Boyle  V.   Pennsylvania  R.   Co.   (221 

Fed.  453),  108.  315. 
Brabham  v.  Baltimore  &  O.  R.  Co. 

(220  Fed.  35),  242,  273. 
Bradbury  v.  Chicago,  R.  I.  &  P. 

Rv.  Co.  (149  Iowa,  51;  128  N.  W. 

1;'40  L.  R.  A.  (N.  S.)  684),  35,  39, 

222,  251,  276,  279,  295,  296,  297, 

310. 
Bradford,  City  of,  v.  Downs  (126 

Pa.   St.   622;   17  Atl.  884),   232, 

235,  259. 
Bramlett    v.    Southern    Ry.    Co.    93 

S.  C.  319;    82  S.  E.  501),  35,  39, 

95,  210. 
Branan  V.  May  (17  Ga.  136),  144,  146. 
Bravis  v.  Chicago,  M.  &  St.  P.  Ry. 

Co.  (217  Fed.  234),  51,  75,  306,  308. 
Brazil,  etc.,  Co.  v.  Hoodlet  (129  Ind. 

327;   27  N.  E.  741),  176. 
Bresky  v.  Minneapolis  &  St.  L.  Ry. 

Co.   (115  Minn.  386;    132  N.  W. 

337),  350. 
Brickman   v.    Southern    R.    Co.    (74 

S.  C.  306;   54  S.  E.  553),  249. 
Brig    James     Gray    v.     Ship     John 

Fraser   (21  How.   184;    16  L.  Ed. 

106),  30. 
Briggs  V.  Chicago  &  N.  W.  Ry.  Co. 

(125  Fed.  745),  397,  469. 
Briggs  V.  Taylor  (28  Vt.   183),   176. 
Brinkerhoff  v.   Bostwick   (88   N.   Y. 

60),  280. 
Brinkmeier   v.    Missouri    Pacific    Ry. 

Co.   (81  Kan.  101;    105  Pac.  221; 

affirmed  224  U.  S.   268;    32  Sup. 

Ct.  412;  56  L.  Ed.  758),  294,  295, 

297,  321,  362,  426,  490,  491. 


Briscoe    v.    Southern    Ry.    Co.    (103 

Ga.  224;  28  S.  E.  638),  144. 
Britfield  v.  Stanahan  (192  V.  S.  470), 

334. 
Brooks   V.    Southern   Pac.    Co.    (148 

Fed.  9SG),  24,  217. 
Brown  v.   Buffalo,   etc.,   R.   Co.    (22 

N.  Y.  191),  219. 
Brown  v.  Chattanooga  Elec.  R.  Co. 

(101   Tenn.   252;    47   S.   W.   415), 

274. 
Brown    v.    Chicago    &    N.    W.    Ry. 

Co.  (102  Wis.  137;   77  N.  W.  748; 

78  N.  W.  771;    44  L.  R.  A.  579), 

261. 
Brown  v.  Maryland  (12  Wheat.  419, 

448;    6  L.  Ed.  678),  386. 
Brown   v.   Southern  Ry.  Co.   (65  S. 

C.  260;    43  S.  E.  794),  249. 
Brown   Store  Co.   v.   Chattahoochee 

(1  Ga.  App.  609;    57  S.  E.  1043), 

146. 
Brown  Store  Co.  v.  Chattachoochee 

Lumber    Co.    (121    Ga.    809;     49 

S.  E.  839),  146. 
Brownell  v.  Pacific  R.  Co.   (47  Mo. 

240),  235. 
Brunswick,    etc.,    R.   Co.   v.   Gibson 

(97  Ga.  489,  497;    25  S.  E.  484), 

139,  141,  144. 
Brunswick,   etc.,   R.   Co.   v.   Hoover 

(74  Ga.  426),  143. 
Bucklew  V.  Central,  etc.,  R.  Co.  (64 

Iowa,  611),  12. 
Bullock  V.  White  Star  Steamship  Co. 

(30  Wash.  448;   70  Pac.  1106),  518. 
Burdett,  The  (9  Pet.  690),  431. 
Burho  V.  Minneapolis  &  St.  L.  Ry. 

Co.    (121   Minn.   326;     141   N.  W. 

300),  362,  406,  410. 
Burlington,  etc.,  R.  Co.  v.  Crockett 

(17    Neb.    570;     14   N.    W.    219), 

229,  303. 


XXVI 


TABLE    OF    CASES. 


[References  are  to  pages. 


Burnett   v.   Atlantic   Coast   Line   R. 

Co.  (163  N.  C.  186;  79  S.  E.  414), 

5,  35,  233,  266,  273,  292,  312. 
Burnett  v.  Southern  P.  &  S.  Ry.  Co. 

(210  Fed.  94),  287. 
Burnett  v.  Spokane,  P.  &  S.  Ry.  Co. 

(210  Fed.  94),  287. 
Burtnett  v.   Erie  R.   Co.   (159  App. 

Div.  712;    144  N.  Y.  Supp.  969), 

35. 
Butler    Bros.    Shoe    Co.    v.    United 

States   Rubber  Co.    (156   Fed.    1), 

57. 


Cain  V.  Macon,  etc.,  R.  Co.  (97  Ga. 

298;  22  S.  E.  918),  142. 
Cain  V.  Southern  Ry.  Co.  (199  Fed. 

211),  22,  217,  219,  220,  240,  244, 

245,  246,  250,  251,  261,  319. 
Caldwell  v.  North  Carolina  (187  U. 

S.  622,  623;    23  Sup.  Ct.  229;    47 

L.   Ed.   336,   reversing   127   N.   C. 

521;    37  S.  E.  138),  347,  363,  387. 
California    Bank    v.    Kennedy    (167 

U.  S.  362;    17  Sup.  Ct.  831;    42 

L.  Ed.  198,  reversing  101  Cal.  495 

40  Am.  St.  69;  35  Pac.  1039),  413 
Callahan  v.   St.   Louis  Mer.   B.   Co 

(170  Mo.  473;    71  S.  W.  208;    60 

L.   R.   A.   249;    94  Am.  St.  746 

affirmed   194  U.   S.   628),    14,   67 
Calumet,  etc.,  Co.  v.  Nolan  (69  111 

App.  104),  134. 
Cameron,  etc.,  Co.  v.  Anderson   (98 

Tex.  156;   81  S.  W.  282),  246. 
Camp  v.  Atlanta  &  C.  A.  L.  Ry.  Co. 

(S.  C.)  (84  S.  E.  825),  72,  98. 
Campbell  v.  Canadian  Northern  Ry. 

Co.   (124  Minn.   245;     144  N.   W. 

772),  60. 
Campbell   v.   Chicago,   M.   &   St.   P. 

Ry.  Co.   (86  Iowa,  563,  641;    53 

N.  W.  323),  58,  355. 


Campbell  v.  Chicago,  R.  I.  &  P.  Ry. 

Co.    (149   111.   App.    120;    affirmed 

243  111.  620;    90  N.  E.  1106),  392. 
Campbell    v.    Haverhill    (155    U.    S. 

610;    15  Sup.  Ct.  217;    39  L.  Ed. 

280),  491. 
Campbell  v.  Spokane  &  I.  E.  R.  Co. 

(188  Fed.  516),  357,  374,  398,  467, 

468,  469,  470. 
Canadian   Pacific   Ry.   Co.   v.   Clark 

(73    Fed.    76;     74    Fed.    362;     20 

C.  C.  A.  447),  294. 
Canadian   Pac.   Ry.  Co.  v.  Robinson 

(14  Can.  Sup.  Ct.  105),  6. 
Capital  Trust  Co.  v.  Great  Northern 

Ry.  Co.   (Minn.)   (149  N.  W.  14), 

220. 
Cardwell    v.    American    Bridge    Co. 

(113  U.  S.  205,  210;    5  Sup.  Ct. 

423;    28  L.  Ed.  959,  affirming  19 

Fed.  562;    9  Sawy.  662),  125. 
Carey  v.  Berkshire  R.  Co.  (1  Cush. 

475),  217. 
Carl,  The  (18  Fed.  655),  173. 
Carlisle  v.   United   States   (16  Wall. 

153;    21   L.   Ed.   426,   reversing  6 

Ct.  CI.  398),  431. 
Carlisle,  The  City  of  (39  Fed.  807), 

167. 
Carolina,  C.  &  O.  Ry.  v.  Shewalter 

(128  Tenn.  363;    161  S.  W.  1136), 

219,  236,  261.  264. 
Carpenter  v.  Kansas  City  Southern 

Ry.  Co.   (Mo.  App.)  (175  S.  W. 

234),  181,  253,  255,  256,  296,  312, 

314. 
Carr  v.  New  York  Cent.  &  H.  Ry. 

Co.    (77    N.    Y.    Misc.    346;     136 

N.  Y.  Supp.  501),  62,  72,  96,  126. 
Carrigan   v.    Stillwell    (97   Me.    247; 

54  Atl.  389;  61  L.  R.  A.  163),  302. 
Carroll    v.    Missouri    Pac.    Ry.    Co. 

(88  Mo.  239),  218. 
Carson  v.  Boston  &  A.  R.  Co.  (164 

Mass.  523;    42  N.  E.  112),  353. 


TABLE    OF    CASES. 


XXVll 


[References  are  to  pages.] 


Carson  v.  Dunham  (121  U.  S.  421; 

7  Sup.  Ct.  1030;    30  L.  Ed.  992), 

489. 
Carson  v.  Southern  Ry.  Co.  (68  S.  C. 

55;    46  S.  E.  525),  426. 
Carter    v.    North    Carolina    R.    Co. 

(139  N.  C.  499;   52  S.  E.  642),  245. 
Catharine,    The    (17    How.    170;     15 

L.  Ed.  233),  167,  169,  172. 
Caulkins  v.  Mathews  (5  Kan.   191), 

134. 
Cavanagh    v.    Ocean,    etc.,    Co.    (13 

N.  Y.  Supp.  540;    9  N.  Y.  Supp. 

198;   11  N.  Y.  Supp.  547;   12  N.  Y. 

Supp.  609),  231. 
Caverhill  v.   Boston  &   M.   (N.   H.) 

(91  Atl.  917),  208,  210,  250. 
Cawood  V.   Chattahoochee   (126   Ga. 

159;    54  S.  E.  944),  145. 
Celt,  The  (3  Hagg.  328n),  167. 
Central,    etc.,    R.    Co.    v.    Denis    (19 

Ga.  437),  134. 
Central,    etc.,    R.    Co.    v.    Attaway 

(90  Ga.  65,  661;  16  S.  E.  956,  958), 

138,  144. 
Central,  etc.,  R.  Co.  v.  Smith  (78  Ga. 

694;  3  S.  E.  397),  146. 
Central    Georgia    Ry.    Co.    v.    Clay 

(3  Ga.  App.  286;  59  S.  E.  843),  145. 
Central  Military  Tract  Co.  v.  Rock- 

afellow  (17  III.  541),  158. 
Central  of  Georgia  Ry.  Co.  v.  Moore 

(5  Ga.  App.  562;    63  S.  E.  642), 

140. 
Central  of  Georgia  R.   Co.   v.   Sims 

(163  Ala.  669;   53  So.  826),  276. 
Central  of  Georgia  Ry.  Co.  v.  Waldo 

(6  Ga.  App.  840;    65  S.  E.  1098), 

125. 
Central    R.  Co.  v.  Brinson   (70  Ga. 

207;    64  Ga.  475,  479),  134,   136, 

138,  143. 


Central    R.    Co.    v.    Colasurdo    (192 

Fed.  901;   113  C.  C.  A.  379,  affirm- 
ing 180  Fed.  832),  72,  116. 
Central    R.    Co.    v.    Dixon    (42    Ga. 

327),  146. 
Central    R.    Co.    v.    Sears    (66    Ga. 

499),  250. 
Central  Ry.  Co.  v.  Dorsey  (106  Ga. 

826;    32  S.  E.  873),  145. 
Central  Ry.  Co.  v.  Harper  (124  Ga. 

836;    53  S.  E.  391),  145. 
Central  Ry.  Co.  v.  McCUfford  (120 

Ga.  90;   47  S.  E.  590),  145. 
Central  Ry.  Co.  v.  McKinney   (118 

Ga.  535;    45  S.  E.  430;    116  Ga. 

13;   42  S.  E.  229),  145,  147. 
Central   Ry.   Co.   v.   Price   (121   Ga. 

651;   49  S.  E.  683),  147. 
Central  Vt.  Ry.  Co.  v.  Bethune  (206 

Fed.  868;    124  C.  C.  A.  528),  203 

204,  208,  211. 
Central  Vt.  Ry.  Co.  v.  United  States 

(205  Fed.  40;    123  C.  C.  A.  308), 

397,  406. 
Central   Vt.   Ry.   Co.   v.   White    (35 

Sup.  Ct.  865,  affirming  87  Vt.  330; 

89  Atl.  618),  259,  293,  294,  296, 

307,  311,  325. 
CentraUa  v.  Krouse  (64  III.  19),  154. 
Chadwick  v.  Oregon  W.  R.  &  N. 

(Ore.)  144  Pac.  1165,  292. 
Chaffee  v.  United  States  (18  Wall. 

518,    538,    545;    21    L.    Ed.    908, 

reversing  Fed.  Gas.  No.  14774), 

431,  494. 
Chamberlain  v.  Ward  (21  How,  548; 

16L.  Ed.  211,  affirming  Fed.  Gas. 

No.  17151),  167. 
Chandler  v.  Southern  R.  Co.  (113 

Ga.  130;  38  S.  E.  305),  14. 
Ghappel  v.  Waterworth  (155  U.  S. 

102;  15  Sup.  Gt.  34;  39  L.  Ed. 

85),  488. 
Charleston  &  W.   G.   Ry.   Co.   v. 

Anchors  (10  Ga.  App.  322;  73  S. 

E.  551),  36,  69,  100,  107,  315. 
Charleston  &  W.   G.   Ry.   Go.   v. 

Sylvester  (Ga.  App.)    (86  S.  E. 

275),  131. 


XXVlll 


TABLE    OF    CASES. 


[References 
Charpeski  v.  Great  Northern  Ry. 

Co.  (Minn.)  (150  N.  W.  1091),  78, 

82,  319. 
Chateaugay    v.    Blake    (144    U.    S. 

476),  854. 
Chattanooga    S.    R.    Co.    v.    Myers 

(112  Ga.  237;  37  Ga.  439),  142. 
Chenoll   v.    Palmer   Brick   Co.    (117 

Ga.  106;  43  S.  E.  443),  147. 
Chesapeake  &  O.  Ry.  Co.  v.  De  Atley 

(159  Ky.  687;   167  S.  W.  933),  203. 
Chesapeake  &  O.  Ry.  Co.  v.  Dwj'er 

(157  Ky.  590;    162  Ky.  427;    163 

S.  W.  752;    172  S.  W.  918),  222, 

237,  239,  240,  242,  243,  245,  246, 

247,  301,  319. 
Chesapeake  &  0.  Ry.  Co.  v.  Hoffman 

63  S.  E.  432),  67. 
Chesapeake  &  O.  Ry.  Co.  v.  Kelley 

(160  Ky.   296;     169   S.   W.   736), 

247,  258,  259. 
Chesapeake  &  O.   Ry.  Co.  v.  Kelly 

(161  Ky.  655;   171  S.  W.  185),  293. 
Chesapeake  &  O.  Ry.  Co.  v.  Walker 

(159   Ky.   237;     167   S.   W.    128), 

204. 
Chesney   v.    Illinois   Central   R.   Co. 

(197  Fed.  85),  287. 
Chew  Heong  v.   United  States   (112 

U.  S.  536),  817. 
Chicago   V.   Barker   (131   Fed.    161), 

110. 
Chicago  V.  Major,  (18  111.  349),  223. 
Chicago    V.    Stearns    (105    111.    554), 

160,  161,  165. 
Chicago    &    A.    R.    Co.    v.    Wiggins 

Ferry   Co.    (108  U.   S.    18;    27   L. 

Ed.  636;    1  Sup.  Ct.  614),  591. 
ChicaRo  &  E.  R.  Co.  v.  Steel  (Ind.) 

(108  N.  E.  4),  75. 
Chicago  &  N.  W.  Ry.  Co.  v.  Gray 

(35  Slip.   Ct.   620,   affirmin^r   153 

Wis.  637;  142  N.  W.  505),  325. 
Chicago  tt  N.  W.  Ry.  Co.  v.  Gray 

(2.37  IJ.  S.  399),  324. 
Cliicago  ct  N.  W.  Ry.  Co.  v.  Osborn 

(52  Fcrl.  912),  58! 


are  to  pages.] 

Chicago  &  N.  W.  R.  Co.  v.  United 

States  (168  Fed.  236;   93  C.  C.  A. 

450;     21    L.   R.   A.    (N.   S.)    690), 

334,  350,  356,  357,  361,  371,  372, 

400,  419,  443,  444,  850. 
Chicago,  B.  &  Q.  R.  Co.  v.  McGuire 

(219  U.  S.  549;    31  Sup.  Ct.  259; 

55  L.  Ed.  328,  affirming  138  Iowa, 

664;     116    N.    W.    801),    22,    267, 

491,  507,  936. 
Chicago,  B.  &  Q.  Ry.  Co.  v.  United 

States  (170  Fed.  556;   95  C.  C.  A. 

41,  642),  419,  421,  422,  426,  451, 

493,  495. 
Chicago,  B.  &  Q.  R.  Co.  v.  United 

States  (195  Fed.  241;    115  C.  C.  A. 

193),  419,  494,  498. 
Chicago,  B.  &  Q.  R.  Co.  v.  United 

States  (211  Fed.  12;    127  C.  C.  A. 

438),  353,  365,  367,  406,  453,  496. 
Chicago,  B.  &  Q.  Ry.  Co.  v.  United 

States,  (220  U.  S.  559;   31  Sup.  Ct. 

612;     55   L.    Ed.   521,   582,    1204, 

affirming  170  Fed.  556;    95  C.  C. 

A.  556,  642),  332,  333,  421,  422, 

424,  426,  435,  465,  467,  493,  499, 

503,  887. 
Chicago,  etc.,  R.  Co.  v.  Beaver  (199 

111.  34;    65  N.  E.  144),  248. 
Chicago,  etc.,  Ry.  Co.  v.  Bentz  (38 

111.  App.  485),  154. 
Chicago,  etc.,  R.  Co.  v.  Cass  (73  111. 

394),  154,  162,  164. 
Chicago,   etc.,   R.   Co.   v.   Clark   (70 

111.  276),  157. 
Chicago,    etc.,    R.    Co.   v.   Cummins 

(24  Ind.  App.  192;  53  N.  E.  1026), 

303. 
Chicago,   etc.,   R.   Co.  v.  Curtis   (51 

Neb.  442;    71  N.  W.  42),  266. 
Chicago,  etc.,  R.  Co.  v.  Dewey   (26 

111.  255),  150,  154,  161. 
Chicago,  etc.,  R.  Co.  v.  Dignam  (56 

111.  487),  163. 


TABLE    OF    CASES. 


XXIX 


[References  are  to  pages. 


Chicago,  etc.,  R.  Co.  v.  Dillon   (17 

111.  App.  355),  160,  166. 
Chicago,  etc.,  Ry.  Co.  v.  Dimick  (96 

lU.  42),  157,  165,  166. 
Chicago,    etc.,    R.    Co.    v.    Donahue 

(75  111.  106),  164. 
Chicago,  etc.,   R.  Co.  v.  Dougherty 

(12  111.  App.  181),  154. 
Chicago,    etc.,    R.    Co.    v.    DriscoU 

(207  111.  9;    69  N.  E.  620),  246. 
Chicago,  etc.,   Ry.  Co.  v.  Dunleavy 

(129  111.  132;    22  N.  E.  15),  159, 

161. 
Chicago,   etc.,   R.   Co.   v.   Dunn   (61 

111.  384),  163,  164. 
Chicago,   etc.,   R.   Co.   v.   Fears   (53 

111.  115),  160. 
Chicago,    etc.,    R.    Co.    v.    Fetsam 

(123  111.  518;    15  N.  E.  169),  153, 

159. 
Chicago,   etc.,    R.    Co.   v.   Flint    (22 

111.  App.  502),   154. 
Chicago,  etc.,   R.  Co.  v.  Gravy   (58 

111.  83),  163. 
Chicago,    etc.,    R.    Co.    v.    Gregory 

(58  111.  272),  154,  167. 
Chicago,    etc.,    R.    Co.    v.    Gretzner 

(46  111.  74;  46  111.  83;  46  111.  74,  75), 

151,  154,  157,  161,  163. 
Chicago,   etc.,   R.   Co.   v.   Harshman 

(21  Ind.  App.  23;    51  N.  E.  343), 

234. 
Chicago,    etc.,    R.    Co.    v.    Harwood 

(90  111.  425),  165,  166. 
Chicago,    etc.,    R.    Co.    v.    Hazzard 

(26  111.  373),  141,  154,  161. 
Chicago,    etc.,    R.    Co.    v.    Hogarth 

(38  111.  370),  161,  163. 
Chicago,  etc.,  R.  Co.  v.  Holmes  (68 

Neb.  826;   94  N.  W.  1007),  248. 
Chicago,    etc.,    R.    Co.    v.    Johnson 

(116  111.  206;    4  N.  E.  381;    103 

111.  512),  150,  151,  153,  154,  155, 

156,  158,  159,  162. 


Chicago,    etc.,    R.    Co.    v.    Kinmare 

(115  111.  App.  132),  302. 
Chicago,    etc.,    R.    Co.    v.    Krueger 

(124  III.  457;   17  N.  E.  52,  affirming 

23  111.  App.  639),  160. 
Chicago,   etc.,   R.   Co.   v.   La  Porte 

(33    Ind.    App.    691;     71    N.    E. 

166),  229,  302,  303. 
Chicago,  etc.,  R.  Co.  v.  Lee  (68  III. 

576;    60  111.  501),   160,   161,   164, 

165. 
Chicago,    etc.,    R.    Co.    v.    Longley 

(2  111.  App.  505),  159. 
Chicago,   etc.,   R.   Co.   v.   Mock   (72 

111.  141),  164. 
Chicago,  etc.,  R.  Co.  v.  Morris  (26 

111.   400),   229. 
Chicago,  etc.,  R.  Co.  v.  Murray  (62 

III.  326),  160,  164. 
Chicago,    etc.,    R.    Co.   v.   O'Connor 

(13  III.  App.  62),  160,  166. 
Chicago,   etc.,   R.  Co.  v.   Payne  (59 

111.  534),  155,  163,  165. 
Chicago,    etc.,    R.    Co.    v.    Pondrom 

(51  III.  333),  162,  163. 
Chicago,  etc.,  R.  Co.  v.  Pontius  (157 

U.  S.  209;    15  Sup.  Ct.  585;    39 

L.  Ed.  675,  affirming  52  Kan.  264; 

34  Pac.  739),  12,  17,  19,  22,  66. 
Chicago,  etc.,  R.  Co.  v.  Pounds  (11 

Lea  (Tenn.)  130),  218. 
Chicago,    etc.,    R.    Co.    v.    Pullman 

Southern  Car  Co.   (139  U.  S.  79; 

11  Sup.  Ct.  490;    35  L.  Ed.  97), 

518. 
Chicago,  etc.,  R.  Co.  v.  Rogers  (17 

111.  App.  638),  154. 
Chicago,   etc.,   R.   Co.  v.   Ross   (112 

U.  S.  377;    28  L.  Ed.  787;   5  Sup. 

Ct.  184),  11. 
Chicago,   etc.,    R.   Co.   v.   Ryan   (70 

III.  211;   60  III.  172),  153. 
Chicago,    etc.,    R.    Co.    v.    Simmons 

(38  III.  242),  154,  161. 


XXX 


TABLE    OF    CASES. 


[References  are  to  pages. 


Chicago,  etc.,  Ry.  Co.  v.  State  (86 

Ark.  412;  111  S.  W.  456),  280,  487. 
Chicago,    etc.,    R.    Co.    v.    Still    (19 

lU.  499),  163. 
Chicago,    etc.,    R.    Co.    v.    Sweeney 

(52  111.   325),    163. 
Chicago,    etc.,    R.    Co.    v.    Thomas 

(155   Ind.   634;     58   N.   E.    1040), 

302. 
Chicago,    etc.,    R.    Co.    v.    Thorson 

(11  lU.  App.  631),  154. 
Chicago,    etc.,    R.    Co.    v.    Triplett 

(38  111.  482),  161,  162,  163,  165. 
Chicggo,  etc.,  R.  Co.  v.  Van  Patten 

(64  111.  510),   151,   160.   163,   164. 
Chicago,  etc.,  R.  Co.  v.  White  (26 

111.    App.    586),     154. 
Chicago,    etc.,    R.    Co.    v.    Wymore 

(40  Neb.  645;  58  N.  W.  1120),  273, 

274. 
Chicago  Great  W.  R.  Co.  v.  Corinth 

(200  Fed.  375),  302. 
Chicago  Great  W.  R.  Co.  v.  McCor- 

mick  (200  Fed.  .375;    118  C.  C.  A. 

527),  256,  292,  308,  312. 
Chicago,  I  &  L.  R.  Co.  v.  Hackett 

(228  U.  S.  559;    33  Sup.  Ct.  581; 

.57  L.  Ed.  581,  affirming  170  111. 

App.   140),   23,   27,   297,  311. 
Chicago  Junction   Ry.   Co.   v.   King 

(169  Fed.  372;    94  C.  C.  A.  652; 

affirmed  222  U.   S.   222;    32  Sup. 

Ct.  79;   56  L.  Ed.  17-3),  81,  82,  93, 

320,  334,  340,  3.57,  358,  361,  364, 

371,  372,  404,  421,  422,  425,  426, 

449,  465,  468,  469,  471,  472,  477, 

478,  487,  497,  503,  853,  860. 
Chicago,  M.  &  P.  S.  R.  Co.  v.  United 

States  (190  Fed.  882;   101  C.  C.  A. 

15;    116  C.  C.  A.  444),  361,  397, 

402,  400,  409,  410. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Min- 
nesota  (134   U.   S.   418;     10  Sup. 

Ct.  462,  702;   33  L.  Ed.  970),  355. 


Chicago,  M.  &  St.  P.  Ry.  Co.  (136 
Wis.  407;    117  N.  W.  686),  506. 

Chicago,  M.  &  St.  P.  R.  Co.  v. 
United  States  (165  Fed.  423,  425; 
91  C.  C.  A.  371;  20  L.  R.  A.  (N.  S.) 
473),  59,  354,  357,  365,  367,  370, 
374,  397,  399,  400,  414,  421,  425, 
443,  444,  448,  449,  852,  859,  890. 

Chicago,  M.  &  St.  P.  R.  Co.  v. 
United  States  (168  Fed.  236), 
352,  399,  494. 

Chicago,  M.  &  St.  P.  R.  Co.  v. 
Voelker  (129  Fed.  522;  65  C.  C.  A. 
65;  70  L.  R.  A.  264;  65  C.  C.  A. 
226,  reversing  116  Fed.  867),  24, 
57,  333,  349,  356,  374,  404,  405, 
406,  408,  411,  472,  476,  489,  602, 
853,  860. 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Ar- 
kansas (219  U.  S.  453;  31  Sup.  Ct. 
275;   56  L.  Ed.  290),  459. 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Brown 
(185  Fed.  80;  107  C.  C.  A.  300; 
229  U.  S.  317;  33  Sup.  Ct.  840; 
57  L.  Ed.  1204;  3  N.  C.  C.  A. 
826),  208,  320,  334,  406,  467,  478, 
482,  484. 

Chicago,  R.  I.  &  P.  Ry.  Co.  v.  HoUi- 

day    (Okla.)    (145   Pac.    786),    36, 

39,  311,  324. 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  McBee 

(Okla.)   (145  Pac.  331),  39. 
Chicago,  R.  I.  &  P.  R.  Co.  v.  Stahley 

(62  Fed.  363),  66,  68. 
Chisholm   v.   Georgia    (2   Ball.   419, 

475;    1  L.  Ed.  440),  283. 
Chivers  v.  Rogers  (50  La.  Ann.  57; 

23  So.  100),  234. 

Choctaw,  Oklahoma  &  Gulf  R.  R. 
Co.  V.  McDade  (191  U.  S.  64,  68; 

24  Sup.  Ct.  24,  102;  48  L.  Ed.  96, 
207,  affirming  52  C.  C.  A.  260; 
114  Fed.  45S),  200,  291,  474. 


TABLK    OF    CASES. 


XXXI 


[References  are  to  pages.] 


Christian  v.  Erwin   (125  111.  619; 

17  N.  E.  707;  22  111.  App.  534), 

153,  159,  IGG. 
Christian  v.  Macon,  etc.,  Co.  (120 

Ga.  314;  47  S.  E.  23),  145. 
Christian  v.  Van  Tassel  (12  Fed. 

Rep.  884,  890),  168. 
Chy  Lung  v.  Freeman    (92  U.   S. 

275,  280;  23  L.  Ed.  550).  387. 
Cicero,  etc.,  St.  Ry.  Co.  v.  Meixner 

(160  III.  320;  43  N.  E.  823;  31 

L.  R.  A.  331),  134. 
Cincinnati,  etc.,  R.  Co.  v.  Adam 

(Ky.)  (13  S.  W.  428),  229. 
Cincinnati,   etc.,  R.  Co.  v.  Pratt 

(92  Ky.  233;    17  S.  W.  484),  229. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 

V.  Bonham   (Tenn.)   (171  S.  W. 

79),  93,  214. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 

V.  Goldston  (156  Ky.  410;  161  S. 

W.  246),  204,  311. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 

V.  Goode  (155  Ky.  153;  159  S.  W. 

695;    163  Ky.  60;    173  S.  W.  329, 

modifying  153  S.  W.  247;    154  S. 

W.  911),  58,   96,   256,   307,   308, 

309,  310. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 

V.  Hill  (Ky.)  (170  S.  W.  599),  292. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 

V.    Interstate    Commerce    Com- 
mission  (162  U.  S.   184,   193;  16 

Sup.  Ct.  700;  40  L.  Ed.  935),  56, 

58,  378,  391. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 

V.  Swann  (160  Ky.  458;  169  S.  W. 

886),  69,  110,  201,  255,  291,  292, 

293. 
Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 

V.  Wilson  (157  Ky.  460;  163  S.  W. 

493),  227. 
Cincinnati,  N.  O.  &  T.  P.  Rv.  Co. 

V.  Wilson  (161  Ky.  640;  17f  S.  W. 

430),  208. 
Cincinnati  Packet  Co.  v.  Bay  (200 

U.  S.  179;  26  Sup.  Ct.  208;  50  L. 

Ed.  428),  355. 


Civilta,  The  (103  U.  S.  699;  26  L. 

Ed.  599;  6  Ben.  309;  Fed.  Cas. 

2775),  168. 
Claflin  V.  Houseman  (93  IJ.  S.  130, 

136,    139;   23   L.    Ed.   833),    279, 

283,  284,  286,  583,  588,  591. 
Clarendon,    The    (6  Sawy.   544;  4 

Fed.  649),  168. 
Clark  V.   Chicago  G.   W.  R.   Co. 

(Iowa)  (152  N.  W.  635),  51,  75, 

78,  319. 
Clark  V.  Southern  Pacific  Ry.  Co. 

(175  Fed.  122),  38,  287,  295. 
Clarke  v.  Holmes  (7  Hurlst.  &  N. 

937;9.  L.  T.  (N.  S.)  178;  10  W.  R. 

405),  200. 
Clary  v.  Chicago,  M.  &  St.  P.  Ry. 

Co.    (141   Wis.   411;   123  N.   W. 

649),  197. 
Cleveland,  C.  C.  &  St.  L.  Ry.  Co. 

V.  Baker  (91  Fed.  224),  478,  484. 
Cleveland,  C.  C.  &  St.  L.  Ry.  Co. 

V.    Public    Service    Commission 

(Ind.)  (108  N.  E.  515),  344. 
Cleveland,  etc.,  Ry.  Co.  v.  Curtis 

(134  111.  App.  565),  280,  477,  487. 
Cleveland,  etc.,  Ry.  Co.  v.  Drumm 

(32  Ind.  App.  547;  70  N.  E.  286), 

247. 
Cleveland,  etc.,  Ry.  Co.  v.  Max- 
well (59  111.  App.  673),  134. 
Cleveland,  etc.,  R.  Co.  v.  Osborn 

(36  Ind.  App.  34;  73  N.  E.  285), 

213. 
Cleveland,  etc.,  R.  Co.  v.  Osgood 

(36  Ind.  App.  34;  70  N.  E.  839; 

34  Ind.  App.  34;  73  N.  E.  285), 

213,  224,  250,  274. 
Cleveland,  etc.,  Ry.  Co.  v.  Patter- 
son (37  Ind.  App.  617;  78  N.  E. 

681),  176. 
Clinton  v.  Englebrecht   (13  Wall. 

434,  447;  20  L.  Ed.  659),  284. 
Clore  V.  Mclntire   (120  Ind.  262; 

22  N.  E.  128),  229,  303. 
Clvatt  V.  United  States  (197  U.  S. 

207;  25  Sup.  Ct.  429;  49  L.  Ed. 

726),  431. 


XXXll 


TABLE    OF    CASES. 


[References  are  to  pages.] 


Clyde  V.  R.  &  D.  R.  Co.   (59  Fed. 

394),  518. 
Cock,    The    Dr.    (5    Mon.    L.    Mag. 

303),  167. 
Coe  V.  ErroU  (116  U.  S.  525;   6  Sup. 

Ct.  475;    29  L.  Ed.  715,  affirming 

69  N.  H.  303),  49,  59. 
CoffeyviUe,   etc.,   Co.   v.   Carter   (65 

Kan.  565;   70  Pac.  635),  246,  247. 
Cohens  v.   Virginia    (6   Wheat.   264, 

299;    5  L.  Ed.  257),  384,  812. 
Colasurdo    v.    Central    R.    of    New 

Jersey  (ISO  Fed.  832;   afRrmed  192 

Fed.  901;    113  C.  C.  A.  379),  78, 

79,  82,  84,  92,  93,  469. 
Cole  V.  Atchison  &   S.   F.   Ry.   Co. 

(92    Kan.    132;     139    Pac.    1137), 

35,  68. 
Coley    V.    North    Carolina    R.    Co. 

(128  N.  C.  534;   39  S.  E.  43),  414, 

455. 
Coley    V.    North    Carolina    R.    Co. 

(129   N.   C.   422;     40   S.    E.    195; 

57  L.  R.  A.  817),  472. 
CoUelU  V.  Turner  (N.  Y.)  (109  N.  E. 

83,  affirming   154  App.   Div.   218; 

138  N.  Y.  Supp.  900),  202. 
Collins  V.  Pennsylvania  R.  Co.  (163 

App.  Div.  452;  148  N.  Y.  Supp. 

777),  222,  224,  247,  250,  258,  259, 

264. 
Collins  V.  Southern  Ry.  Co.   (124 

Ga.  853;    53  S.  E.  388),  145. 
Columbia,  The  (27  Fed.  238),  168. 
Columbia  &  P.  S.  R.  Co.  v.  Sauter 

(223  Fed.  604),  98,  204. 
Columbus,    etc.,    Co.    v.    Burke    (37 

Ind.   App.   518;    77   N.   E.    409), 

176. 
Columbus    R.    Co.    v.    Dorsey    (119 

Ga.  363;    46  S.  E.  635),  145. 
Comer    v.    Barfield    (102    Ga.    489; 

34  S.  E.  90),  138,  144. 
Comer    v.    Shaw    (98    Ga.    545;     25 

S.  E.  733),   144. 


Commonwealth    v.    Casey    (43    Pa. 

Sup.  Ct.  494),  508. 
Commonwealth    v.    Hart    (11    Cush. 

130),  400. 
Commonwealth  v.  Lehigh  Valley  R. 

Co.  (Pa.)  (17  Atl.  179),  58,  355. 
Conant  v.  Griffin  (48  111.  410),  229. 
Conley   v.    Cincinnati,   etc.,    R.   Co. 

(Ky.)  (12  S.  W.  764),  229. 
Conlin    v.    City    of    Charleston    (15 

Rich.  L.  201),  229. 
Connecticut,    The    (103   U.   S.   710; 

26  L.  Ed.  467),  168. 
Connecticut,  etc.,  Co.  v.  New  York, 

etc.,  R.  Co.  (25  Conn.  265),  217. 
Connelly  v.   Union   Sewer  Pipe  Co. 

(184  U.  S.  540;  22  Sup.  Ct.  431; 

46  L.  Ed.  679),  19. 
Conners  v.  Burhngton,  etc.,  R.  Co. 

(71   Iowa,   490;    32  N.   W.   465), 

219. 
Connole   v.   Norfolk  &   W.   Ry.   Co. 

(216  Fed.  823),  29,  68,  92. 
Connolly  v.  Ross  (11  Fed.  342),  168. 
Connor,  In  re  (39  Col.  98,   101;    2 

Am.  Rep.  427),  285. 
Conrad  v.  Atchison,  T.  &  S.  F.  Ry. 

Co.  (173  Fed.  527),  289. 
Consolidated    Store   Co.    v.    Morgan 

(160  Ind.  241;  66  N.  E.  696),  246. 
Continental,  The  (14  Wall.  345;    20 

L.   Ed.   801,   reversing  8  Blatchf. 

33;    Fed.  Cas.  3141),  167. 
Cook  v.  New  York,  etc.,  R.  Co.  (10 

Hun,  426),  250. 
Cooley   V.   Philadelphia   Port  Ward- 
ens (12  How.  299,  319;    13  L.  Ed. 

996),  30,  31,  125,  572,  595. 
Coon  V.  Utica,  etc.,   R.  Co.   (5  N. 

Y.  492),  8. 
Cooper  V.  Railway  Co.  (.56  S.  C.  91; 

34  S.  E.  16),  131. 


TABLE    OF    CASES. 


XXXIU 


[References  are  to  pages.] 


Cooper  Mfg.   Co.   v.   Ferguson   (113 

U.  S.  727,  736,  737;    5  Sup.  Ct. 

739;  28  L.  Ed.  1137),  387. 
Copper  River  &  N.  W.  Ry.  Co.  v. 

Heney  (211  Fed.  459;   127  C.  C.  A. 

648),  35,  60,  306. 
Copper  River  &  N.  W.  Ry.  Co.  v. 

Reeder  (211  Fed.  Ill;   127  C.  C.  A. 

648),  258. 
Corbett  v.   Boston  &  M.  R.  Co. 

(Mass.)  (107  N.  E.  60),  280,  306. 
Corbett  v.  Oregon,  etc.,  R.  Co.  (25 

Utah,  449;  71  Pac.  1065),  248. 
Corsair,    The    (145   U.   S.   335,    12 

Sup.   Ct.   949;  36   L.   Ed.   727), 

236,  261. 
Cory  V.  Lake  Shore  &  M.  S.  Ry. 

Co.  (208  Fed.  847),  35. 
Cound  V.  Atchison,  T.  &  S.  F.  Ry. 

Co.  (173  Fed.  527),  39,  295,  296, 
.  580. 
County  V.    Pacific,    etc.,    Co.    (68 

N.  .J.  L.  273;  53  Ati.  3S6).  230. 
Coursen  v.  Ely  (37  III.  338),  163. 
Cousins  V.  Illinois  Cent.  R.Co.  (126 

Minn.  172;  148  N.  W.  58),  42,  96. 
Covell  V.  Heyman  (111  U.  S.  182; 

4  Sup.  Ct.  358;  28  L.  Ed.  390),  586. 
Covington  V.  Bryant  (7  Bush.,  248), 

148. 
Covington,  etc.,  Co.  v.  Kentucky 

(154  U.  S.  204;  14  Sup.  Ct.  1087; 

38  L.  Ed.  962,  reversing  15  Ky.  L. 

320;  22  S.  VV.  851),  32,  54,  58. 
Cowen  V.   Ray   (47  C.  C.  A.  452; 

108  Fed.  320),  273. 
Cox  V.  Wilmington,  etc.,  Ry.  Co. 

(4    Penn.     (Del.)    162;    53    Atl. 

569),  246. 
Crandall  v.  Chicago  G.  W.  R.  Co. 

(Minn.)  (150  N.  W.  165),  117. 

Crandall  v.  Nevada  (6  Wall.  35),  31. 
Crape  v.  Syracuse   (183  N.  Y.  395; 

76  N.  E.  46.5),  230. 
Cravrford    v.    New    York,    etc.,    R. 

Co.   (10  Am.  Neg.  Rep.   166),  59, 

333,  352,  364,  365,  374,  412,  469, 

487,  497. 


Crew  V.  St.  Louis,  etc.,  R.  Co.  (20 

Fed.  87),  181. 
Cross  V.   Chicago,   B.  &   Q.   R.  Co. 

(Mo.  App.)  (177  S.  W.  1127),  36, 

42,  98,  105,  202,  204,  255. 
Cross  V.  North  Carolina  (132  U.  S. 

131;    10  Sup.  Ct.  47;    46  L.  Ed. 

— ),  342. 
Crutcher    v.    Kentucky    (141    XJ.    S. 

47,  57,  58,  59;    11  Sup.  Ct.  851; 

35  L.   Ed.   649,   reversing  89  Ky. 

6;   12  S.  W.  141),  363,387. 
Crystal    Springs    Dist.    Co.    v.    Cox 

(49  Fed.  556;    I.  C.  C.  A.  365), 

519. 
Cumberland,   etc.,   Co.   v.   Anderson 

(89  Miss.  732;   41  So.  263),  248. 
Cummings  v.  Missouri  (4  Wall.  277), 

584. 
Cunningham    v.    Magoon    (18    Pick. 

13),  854. 
Cutting    V.    Cutting    (6    Fed.    268), 

225. 
Cypress,  The  (55  Fed.  333),  168. 


Dacey  v.   Old   Colony   R.   Co.    (153 

Mass.  112;    26  N.  E.  437),  353. 
Daer  v.  Baltimore  &  O.  R.  Co.  (197 

Fed.  665;    affirmed  204  Fed.  751), 

100. 
Dailey  v.  Southern  Ry.  Co.  (Appendix 

G),  867. 
Daley  v.  Boston,  etc.,   R.  Co.   (147 

Mass.    101;     16  N.   E.   690),   232, 

303. 
Daly  V.  Illinois  Central  R.  Co.  (170  111. 

App.  185),  373,  374,  397,  407,  415. 
Daly   V.    New   Jersey,    etc.,    R.   Co. 

(155  Mass.  1;    29  N.  E.  507),  226. 


XXXIV 


TABLE    OF   CASES. 


[References  are  to  pages. 


Daniel    Ball,    The    (10    WaU.    557, 

565;     19   L.   Ed.   999;    Fed.   Cas. 

3564,     reversing     Brown,     Admr., 

Cas.   193),  49,  56,  349,  379,  380, 

382,  387,  720,  798,  802. 
Dare  v.  Wabash,  etc.,   R.   Co.   (119 

111.  App.  256),  230. 
Dauntless,  The  (121  Fed.  420),  247. 
David  Dowe,  The  (16  Fed.  154),  168. 
Davidson-Benedict   Co.    v.    Severson 

(109  Tenn.  572;    72  S.  W.  967), 

245,  264. 
Davis     V.     Elmira     Savings     Bank 

(161  U.  S.  275),  584. 
Davis    V.    Southern    Ry.    Co.    (147 

N.  C.  68;  60  S.  E.  722),  58,  355. 
Dawson  v.  Chicago,  R.  I.  &  P.  Ry. 

Co.  (114  Fed.  870),  415,  452,  502. 
Day    V.    KeUy    (Mont.)     (146    Pac. 

930),  255. 
Daylesford,  The  (30  Fed.  633),   167, 

169. 
Deal  V.  Coal  &  Coke  Ry.  Co.   (215 

Fed.  285),  98. 
DeAtley  v.  Chesapeake  &  O.  R.  Co. 

(201  Fed.  591),  35,  41,  69,  288. 
Debs,  In  re  (158  Fed.  564;    affirmed 

15  Sup.  Ct.  500;    39  L.  Ed.  1092; 

159  U.S.  251),  78,  338,  381,  388,  584. 
Defiance     Water     Co.     v.     Defiance 

(191  U.S.  194),  591. 
Delaware,  L.  &  W.  R.  Co.  v.  Troxell 

(183    Fed.    373;     188    Fed.    842; 

105  C.  C.  A.  593),  35,  214,  215. 
Delaware,  L.  &  W.  R.  Co.  v.  Yur- 

konis  (220  Fed.  429;    35  Sup.  Ct. 

902,   affirming   213   Fed.   537),   36, 

107,  108,  276,  304,  310,  311. 
Delk  V.  St.  Louis  &  S.   F.  R.  Co. 

(220  U.  S.  580;    31  Sup.  Ct.  617; 

55  L.  Ed.  590,  reversing  170  Fed. 

556;  95  C.  C.  A.  642),  97,  333,  361, 

365,  371,  375,  411,  421,  425,  465, 

887. 


Denol  V.  Central  Ry.  Co.   (119  Ga. 

246;  46  S.  E.  107),  145. 
Denver  &  R.  G.  R.  Co.  v.  Arrighi 

(129  Fed.  347;    63  C.  C.  A.  649), 

477,  484. 
Denver  &  R.  G.  R.  Co.  v.  Gannon 

(40    Colo.     195;     90    Pac.    853); 

472. 
Denver,    etc.,    R.    Co.    v.    Gunning 

(33    Colo.    280;     80    Pac.    727), 

247,  302. 
Denver,   etc.,   R.   Co.   v.   Woodward 

(4  Colo.  162),  218. 
Deppe  V.  Chicago,  etc.,  R.  Co.   (36 

Iowa,  52),  17. 
DeRivera  v.  Atchison,  T.  &  S.  F.  Ry. 

Co.   (Tex.   Civ.  App.)    (149  S.  W. 

223),  36,  38,  39,  213,  233. 
Detroit,  etc.,   R.  Co.  v.  Van  Stein- 
burg  (17  Mich.  99,  118),  176. 
Detroit  St.  Ry.  Co.  v.  Mills  (85  Mich. 

634;  48N.  W.  1007),  353. 
Detroit,   T.   &   I.   Ry.   Co.   v.   State 

(82  Ohio  St.  60;    91  N.  E.  869), 

338,  343. 
Detroit,  T.  &  I.  Ry.  Co.  v.  State 

(83  Ohio  St.  273;    94  N.  E.  175), 

340. 
Devaux  v.  Salvador  (4  Adol.  &  El. 

420),  170. 
Devine    v.    Chicago    &    C.    R.    Co. 

(168  111.  App.  450),  399,  414,  426. 
Devine    v.    Chicago    &    C.    R.    Co. 

(259    111.    499;     102    N.    E.    803, 

reversing  174  111.  App.  324),  366, 

374. 
Devine    v.    Chicago    &    C.    R.    Co. 

(266    111.    248;     102    N.    E.    803; 

107    N.    E.    595),    245,    292,    315, 

354,  471,  485. 
Devine  v.  Chicago.  R.  I.  &  P.  Ry. 

Co.  (265  111.  641;    107  N.  E.  595), 

4,  208,  237,  315. 


TABLE    OF   CASES. 


XXXV 


[References  are  to  pages.] 


Devine    v.    Illinois    Central    R.    Co. 

(156  111.  App.  369),  362,  397. 
Dewberry  v.  Southern  Ry.  Co.  (175 

Fed.  307),  37. 
Dibble   v.   New   York,   etc.,    R.   Co. 

(25  Barb.   183),  273. 
Dickinson    v.    Northeastern    R.    Co. 

2  H.  &  C.  735;    33  L.  J.  Exch. 

91;    9  L.  T.  (N.  S.)  299;    12  W. 

R.  52),  227. 
Dickson  v.  United  States  (1  Brock. 

— ),  518. 
Diller    v.    Cleveland,    etc.,    R.    Co. 

(34  Ind.  App.  52;  72  N.  E.  271), 

213,  227,  234. 
Dillon   V.   Great   Northern    Ry.   Co. 

(38    Mont.    485;     100    Pac.    960), 

218,  220,  261. 
Dillon   V.   Union   Pacific   R.    Co.    (3 

Dill.  325),  181. 
Dinsmore    v.     Racine    M.     R.     Co. 

(12  Wis.  649),  345. 
Dithberner  v.  Chicago,  etc.,  R.  Co. 

(47  Wis.  138;   2  N.  W.  69),  12,  17. 
Dobson  V.   Whisenhant   (101   N.   C. 

645),  880. 
Dodge   V.    Chicago,    G.   W.    R.    Co. 

(la.)  (146  N.  W.  14),  104,  411. 
Dodge  V.  Wolsey  (18  How.  331),  584. 
Dohr  V.  Wisconsin  Central  Ry.  Co. 

(144  Wis.  545;    129  N.  W.  252), 

196. 
Dolson  V.  Lake  Shore,  etc.,  R.  Co. 

(128  Mich.  444;    87  N.  W.  629), 

261. 
Donald  v.  Chicago,  etc.,  R.  Co.  (93 

Iowa,    284;     61    N.    W.    971;     33 

L.  R.  A.  492),  266. 
Donegan  v.   Baltimore  &   N.   Y.   R. 

Co.   (165  Fed.   689;    91   C.   C.  A. 

555),  364,  404,  406,  425,  469,  470, 

471,  478,  481,  484,  485,  SGO. 


Dooley  v.  Seaboard  Air  Line  R.  Co. 

(163  N.   C.  454;    79  S.   E.  970), 

240,  245,  303. 
Doran   v.   Pennsylvania   R.   Co.    (93 

Fed.  266;  35  C.  C.  A.  282),  309. 
Dorsey    v.    Columbus    R.    Co.    (121 

Ga.  697;  49  S.  E.  698),  302. 
Dowell  V.  Burlington,  etc.,  Ry.  Co. 

(62  Iowa,  629),  274. 
Downes  v.  Bidwell  (182  U.  S.  258), 

812. 
Doyle  V.  White  (9  App.  Div.  (N.  Y.) 

521;  41  N.  Y.  Supp.  628;  75  N.  Y. 

St.  628),  11. 
Draper    v.    Tucker    (69    Neb.    434; 

95  N.  W.  1026),  248. 
Dreher  v.   Fitchburg   (22  Wis.  675), 

162. 
Dreyer  v.   People    (188   111.   40;    58 

N.  E.  620),  519. 
Duch    V.    Fitzhugh     (2    Lea,    307), 

147,  175. 
Duke  V.  St.  Louis  &  S.  F.  Ry.  Co. 

(172  Fed.  684),  218,  245,  250. 
Dunbar  v.  Charleston  &  W.  C.  Ry. 

Co.   (186  Fed.   175),  223. 
Dungan  v.  St.  Louis  &  S.  F.  R.  Co. 

(178   Mo.   App.    164;     165   S.   W. 

1116),   35,   214,   216. 
Dunmead  v.  American,  etc.,  Co.   (4 

McCrary,  244),  181. 
Duval  v.  Hunt  (34  Fla.  85;  15  So. 

876),  136. 


Eagle,  etc.,  Mills  v.  Herron  (119 

Ga.  389;  46  S.  E.  405),  145. 
Easter  v.  Virginian  Ry.  Co.    (W. 

Va.)  (86  S.  E.  37),  36,  131,  208, 

280. 
Eastern  Ry.  Co.  v.  Ellis  (Tex.  Civ. 

Aop.)    (153  S.   W.   701),   35,   36, 

213,  214,  215,  231,  232,  307,  308. 
East  St.   Louis,  etc.,   Ry.   Co.   v. 

O'Hara  (150  111.  580;  37  N.  E. 

917),  390. 


XXXVl 


TABLE    OF    CASES. 


[References  are  to  pages.] 


East    Tennessee,    ett;.,    Ry.    Co.    v. 

Lilly  (90  Tenn.  563;   18  S.  W.  118), 

229. 
East    Tennessee,     etc.,     R.     Co.     v. 

Maloy  (77  Ga.  237),  135. 
Eau  Claire  National  Bank  v.  Jacknaan 

(204  U.  S.  522;    27  Sup.  Ct.  391; 

51  L.  Ed.  596,  affirming  125  Wis. 

465;    104  N.  W.  98),  413. 
E.  B.  Ward,  The  (20  Fed.  702),  168. 
Eclen    V.    Le.xington,    etc.,    R.    Co. 

(14  B.  Mon.  165),  217. 
Edgar  V.  Costello  (14  S.  C.  20),  217. 
Edward  Luckenbach,   The   (94   Fed. 

545),  169. 
Edwards    v.    Central,    etc.,    R.    Co. 

(118  Ga.  678;    45  S.  E.  462),  145. 
Elgin,  etc.,  R.  Co.  v.  United  States 

(168  Fed.   1),  349,  352,  354,  355, 

356,  358,  365,  369,  371,  393,  399, 

736. 
Ellis  V.  Louisville,  H.  &  St.  L.  Ry. 

Co.  (155  Ky.  745;    160  S.  W.  512), 

255. 
Ellis  V.  United  States  (206  Ij.  S.  57), 

921. 
Elmore  v.  Seaboard  Air  Line  R.  Co. 

(130   N.    C.   205,    506;    41    S.   E. 

786;    131  N.  C.  569;   42  S.  E.  989; 

132   N.    C.    865;    44  S.    E.   620), 

402,  410,  439,  467,  469,  470,  477, 

483,  487. 
El  Paso  &  N.  E.  Ry.  Co.  v.  Gutierrez 

(215  U.  S.  87;   30  Sup.  Ct.  21;   54 

L.  Ed.  106;   37  Wash.  L.  Rep.  782, 

affirming  102  Tex.  378;    117  S.  W. 

436,  which  reversed   102  Tex.  Civ. 

App.  378;    117  S.  W.  159),  22,  27, 

38,  267,  314. 
Eiwell  V.   Hocker  (86  Me.  416;    30 

Atl.  84),  11. 

Elwood  St.  Ry.  Co.  v.  Cooper  (22 
Ind.  App.  459;  53  N.  E.  1092), 
228. 


Elwood  St.  Ry.  Co.  v.  Ross  (26  Ind. 

App.  258;    58  N.  E.  .535),  228. 
Emery  v.   Philadelphia   (208  Pa.  St. 

492;    57  Atl.  977),  249. 
Employers'  Liability  Cases  (207  U.  S. 

463,  498;    28  Sup.  Ct.  141;    52  L. 

Ed.  297;    56  L.  Ed.  327,  affirming 

148  Fed.  997),  22,  24,  27,  28,  77, 

78,   80,    118,    120,   201,   335,   340, 

347,  722. 
Eng.  v.  Southern  Pac.  Co.  (210  Fed. 

92),  74,  101,  287. 
English  Employers'  Liability  Act  of 

1880  (43  and  44  Vict.  42),  599. 
Entwhistle     v.     Feighner     (60     Mo. 

214),  235. 
Erb    V.    Morasch    (177    U.    S.    584; 

20  Sup.  Ct.  819;    44  L.  Ed.  897, 

affirming   60   Kan.    251;     56   Pac. 

133),  33. 
Erie  R.  Co.  v.  Jacobus  (221  Fed.  335), 

43,  69,  207,  208,  212,  315,  319. 
Erie  R.   Co.  v.   Kennedy   (191   Fed. 

332;   112  C.  C.  A.  76),  43,  93,  295, 

313,317,318. 
Erie  R.  Co.  V.  New  York  (233  U.  S. 

671;    34  Sup.  Ct.  756;    58  L.  Ed. 

1149,    reversing    198    N.    Y.    369; 

91  N.  E.  849),  338,  339,  525. 
Erie   R.    Co.    v.    Russell    (183    Fed. 

722;    106  C.  C.  A.  160),  349,  350, 

354,  357,  358,  365,  469,  485,  855. 
Erie  R.  Co.  v.  United  States  (197  Fed. 

287;    116  C.  C.  A.  649),  95,  365, 

466,   890,   910. 
Erie    R.    Co.    v.    Welsh    (Ohio    St.) 

(105  N.  E.  189),  35,  72,  297,  295. 
Erlingcr  v.  St.  Louis  &  O.  Ry.  Co. 

(152  111.   App.   640;    245  111.   304; 

92  N.  E.  153),  426. 

Eseanaba   Co.    v.    Chicago    (107    U. 

S.  678),  30. 
Evans  v.  Detroit,  G.  H.  &  M.  Ry.  Co. 

(Mich.)  (148  N.  W.  490),  101,  315. 


TABLE    OF    CASES. 


XXXVll 


[References  are  to  pages.] 


Evans   v.    Newland    (34    Ind.    112), 

234. 
Evausville,   etc.,  R.  Co.  v.   Lowder- 

milk  (15  Ind.  120),  218. 
Evarts   v.    Santa   Barbara,    etc.,    R. 

Co.    (3   Cal.    App.    712;     86   Pac. 

830),  246,  249. 
Ewald   V.    Chicago   &   Northwestern 

R.  Co.   (70  Wis.  420;    36  N.  W. 

12,  591),  89. 
Ewen   V.   Chicago,   etc.,   R.   Co.    (38 

Wis.   613),   303. 
Explorer,  The  (20  Fed.  140;   21  Fed. 

135,  140),  167,  108,  171. 


Fajardo  v.  New  York  Cent.  R.  Co. 

(84  N.  Y.  App.  Div.  354),  246. 
Farley  v.  New  York,  N.  H.  &  H.  R. 

R.   Co.    (87   Conn.   328;    87   Atl. 

999),  219. 
Farley  v.  New  York,  N.  H.  &  H.  R. 

R.  Co.  (Conn.)  (91  Atl.  650),  203, 

204,  211. 
Farmers,  etc.,  Bank  v.  Bearing  (91 

U.  S.  29;    23  L.  Ed.  196),  393. 
Farrell  v.  Pennsylvania  R.  Co.  (N.  J.) 

(93  Atl.  682),  95. 
Farrugo  v.   Philadelphia    &    Pl.   Ry. 

Co.  (233  U.  S.  352;    34  Sup.  Ct. 

591;    58  L.  Ed.  — ),  286,  324. 
Farwell  v.   Boston,  etc.,   R.   Co.    (4 

Mete.  49;    38  Am.  Dec.  339),  8, 

10,  473. 
Felt  V.  Denver  &  R.  G.  R.  Co.  (48 

Colo.   249;     110   Pac.    215,    1136), 

350,  357,  358,  362,  373,  391,  400, 

490. 
Felton  V.  Spire  (75  Fed.  576),  854. 
Fernette  v.   Pere  Rfkrquette  R.   Co. 

(Mich.)   (144  N.  W.  834),  39,  46, 

308. 


Fidelity,    etc.,    Co.    v.    Buzzard    (69 

Kan.  330;    76  Pa.  St.  832),  249. 
Fish  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 

(Mo.)   (172  S.  W.  340),  203,  204, 

255,  287,  292,  312. 
Fish  V.  Clapman  (2  Ga.  349),  518. 
Fisher   v.    Cook    (125    111.    280;     17 

N.  E.  76.3),  152. 
Fithian  v.  St.  Louis  &  S.  F.  Ry.  Co. 

(188  Fed.  842),  35,  37,  214,  218, 

233,  249. 
Flanders  v.  Georgia  S.  &  F.  Ry.  Co. 

(Fla.)    (67    So.    68),    36,    39,    214, 

310. 
Flatley    v.    Memphis,    etc.,    R.    Co. 

(9  Heisk.  230),  232. 
Fleming   v.   Southern   Ry.   Co.    (131 

N.  C.  476;  42  S.  E.  905;   132  N.  E. 

714;   44  S.  E.  Rep.  551),  396,  397, 

457,  478. 
Fletcher  v.   Baltimore  &   P.   R.  Co. 

(168  U.  S.   135;    18  Sup.  Ct.  35; 

42   L.   Ed.   411,   reversing  6  App. 

Div.  385),  90. 
Flood  v.  Chicago,  etc.,  R.  Co.   (109 

Minn.  228;    123  N.  W.  815;    134 

Am.  St.  771;    18  Ana.  Cas.  274), 

60. 
Florida  East  Coast  R.   Co.   v.   Las- 

siter  (58  Fla.  234;   50  So.  428),  14. 
Florida  Ry.  Co.  v.  Dorsey   (59  Fla. 

260;    52  So.  963),  148. 
Fogarty  v.  Northern  Pacific  Ry.  Co. 

(Wash.)  (147  Pac.  652),  223,  227, 

240,  242,  246. 
Folej^  v.  Railroad  Co.  (64  Iowa,  644; 

21  N.  W.  124),  64. 
Foot  v.  Great  Northern  R.  Co.   (81 

Minn.    493;     84   N.   W.   342;     52 

L.  R.  A.  354),  274. 
Fordyce  v.   McCouts   (51   Ark.   509; 

11  S.  W.  694),  235. 
Fowleker  v.  Nash   (5  Baxt.   (Tenn.) 

663),  219. 


XXXVlll 


TABLE    OF    CASES. 


[References  are  to  pages. 


Fowlkes   V.   Nashville,    etc.,    R.   Co. 

(5  Baxt.  663;    9  Heisk.  829),  232. 
Frank  and  WiUie,  The  (45  Fed.  405), 

168. 
Freeman  v.  Nashville,  etc.,  Ry.  Co. 

(120    Ga.    469;     47    S.    E.    931), 

140,    146. 
Freeman   v.    Powell    (105   Tea.   317; 

144  S.  W.  1033;    148  S.  W.  290), 

96,  127,  203,  205,  311. 
Freeman  v.  Swan   (Tex.  Civ.  App.) 

(143  S.  W.  724),  344. 
Friends,   The   (4  E.   F.   Moore  314, 

322),  167. 
Ft.  Smith  &  W.  R.  Co.  v.  Blevins 

(35  Okla.  378;    130  Pac.  525),  288. 
Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Cope- 
land  (Tex.  Civ.  App.)  (164  S.  W. 

857),  203,  204. 
Ft.   Worth  Belt   Ry.   Co.   Ferryman 

(Tex.  Civ.  App.)  (158  S.  W.  1181), 

43,  61,  315,  317. 
Ft.  Worth,  etc.,  R.  Co.  v.  Linthicum 

(33  Tex.  Civ.  App.  375;   77  S.  W. 

40),  246. 
Fulgam   V.    Midland   Valley   R.    Co. 

(167    Fed.    660),    4,    38,    41,    217, 

219,  571,  574,  575,  594,  597. 
Fuller  V.   Baltimore,   etc.,  Ass'n   (67 

Md.  433;    10  Atl.  237),  266. 
Fuller  V.   Grand  Trunk  Ry.   Co.    (1 

Low  Cas.  L.  J.  68),  6. 
Futz  V.  Western  U.  T.  Co.  (25  Utah, 

263;   71  Pac.  209),  227. 


Caber  v.  Duluth,  S.  S.  &  A.  Ry.  Co. 

(Wis.)  (150  N.  W.  489),  71,  72,  97, 

103,  311,  319. 
Gains  v.   Detroit,  G.   H.  &  M.   Ry. 

Co.  (Mich.)  (148  N.  W.  397),  313. 
Galena,  etc.,  R.  Co.  v.  Fay  (16  111. 

567),  I'll. 


Galena,   etc.,   R.  Co.  v.  Jacobs   (20 

111.  478,  485),  133,  141,  149,  161, 

163. 
Galena,    etc.,    R.    Co.    v.    Yorwood 

(15  111.  469),  141. 
Galveston  v.  Barbour  (62  Tex.  172), 

235. 
Galveston,    etc.,    R.    Co.    v.    Averill 

(Tex.  Civ.  App.)   (136  S.  W.  98), 

317. 
Galveston,  etc.,  R.  Co.  v.  Contreras 

(31  Tex.  Civ.  App.  489;   73  S.  W. 

1051),  228. 
Galveston,   etc.,   Ry.   Co.  v.   Puenta 

(30  Tex.  Civ.  App.  246;   70  S.  W. 

362),  248. 
Galveston,   H.  &  S.  A.  Ry.  Co.  v. 

Chojnacky   (Tex.  Civ.  App.)    (163 

S.  W.  1011),  106. 
Galveston,   H.  &  S.  A.  Ry.  Co.  v. 

Kurtz  (Tex.  Civ.  App.)  (147  S.  W. 

658),  472. 
Galveston,    H.    &    S.   A.    R.    Co.    v. 

United  States  (183  Fed.  579;    105 

C.  C.  A.  422),  421,  500. 
Galveston,   H.  &  S.  A.  Ry.  Co.  v. 

United  States  (199  Fed.  891;    118 

C.  C.  A.  339),  421,  443,  453,  454. 
Galveston,   H.   &   S.   Ry.   v.   Bosher 

(Tex.  Civ.  App.)  (165  S.  W.  93), 

203. 
Ganoche   v.   Johnson,   etc.,  Co.  (116 

Mo.  App.  596;  92  S.  W.  918),  247. 
Garfield    Mfg.    Co.    v.    McLean    (18 

111.  App.  447),  154. 

Garrett  v.  Louisville  &  N.  R.  Co. 

(197  Fed.  715;  117  C.  C.  A.  109), 

239,  242,  244,  248,  292,  295. 
Garrett  v.  Louisville  <fe  N.  R.  Co. 

(235  U.  S.  308;  35  Sup.Ct.  32),  303. 
Gaus  V.  Railway  Co.  (174  Mo.  53; 

73  S.  W.  686;  61  L.  R.  A.  475),  54. 
Gee  V.  Lehigh  V.  R.  Co.  (163  App. 

Div.  274;  148  N.  Y.  Supp.  882), 

36,  201. 


TABLE    OF    CASES. 


XXXIX 


[References  are  to  pages.] 


Gekas  v.  Oregon-Wash.  R.  &  Nav. 

Co.   (Ore.)    (146  Pac.  970),   101, 

208,  292. 
George  v.  Chicago,  etc.,  R.  Co.  (51 

Wis.  603;    8  N.  W.  374),  231. 
George  v.   Clark   (85   Fed.   608;    20 

C.  C.  A.  274),  480. 
George  and  Richard,  The  (L.  R.  Ad. 

&  Ecc.  466;   24  L.  T.  (N.  S.)  717; 

20  Weekly  Rep.  245),  228. 
Georgia  Cotton  Oil  Co.   v.   Jackson 

(112  Ga.  620;    37  S.  E.  873),  145. 
Georgia,     etc.,     Co.     v.     Henderson 

(117  Ga.  480;    43  S.  E.  698),  147. 
Georgia,  etc.,  Co.  v.  Neely  (58  Ga. 

540,  580),  143,  144,  147,  174. 
Georgia,  etc.,  R.  Co.  v.  Brown   (86 

Ga.  320;    12  S.  E.  812),  12,  14. 
Georgia,   etc.,   R.   Co.   v.   Cosby   (97 

Ga.  299;   22  S.  E.  912),  14. 
Georgia,    etc.,    R.    Co.    v.    Goldwire 

(56  Ga.  196),  14. 
Georgia,    etc.,    R.    Co.    v.    Hallman 

(97  Ga.  317;   23  S.  E.  73),  143. 
Georgia,   etc.,   R.   Co.   v.   Hicks   (95 

Ga.  301,  302;    22  S.  E.  613)    14, 

143. 
Georgia,   etc.,   R.   Co.   v.   Miller   (90 

Ga.  574),  12,  67. 
Georgia,   etc.,   R.   Co.   v.   Nilus    (83 

Ga.  70;    9  S.  E.   1049),   144. 
Georgia,  etc.,  R.  Co.  v.  Rhodes  (56 

Ga.  645),  14. 
Georgia,  etc.,  R.  Co.  v.  Thomas  (68 

Ga.  744),  136,  144. 
Georgia,  etc.,   Ry.   Co.   v.   Sasser   (4 

Ga.  App.  276;    61  S.  E.  998),  147. 
Georgia  Pacific  R.  Co.  v.  Davis  (92 

Ala.  307;    9  So.  253;    25  Am.  St. 

47),  280,  488.  491. 
Georgia    R.    Co.    v.    Ivey    (73    Ga. 

499),  12. 
Georgia  R.  v.  Pittman  (73  Ga.  325), 

143. 


Geroux  v.  Graves  (62  Vt.  280;    19 

Atl.  987),  229. 
Gibbons  v.  Ogden  (9  Wheat.  1,  209, 

210;    6  L.  Ed.  23),  79,  386,  573, 

595. 
Gibson  v.  Bellingham  &  N.  Ry.  Co. 

(213  Fed.  488),  280,  287,  294. 
Gibbs  V.  Great  Western  R.  Co.   (12 

Q.  B.  Div.  211),  600. 
Gila  Valley,  G.  &  N.  R.  Co.  v.  Hall 

(232  U.  S.  94,   101;    34  Sup.  Ct. 

229;   58  L.  Ed.  521),  200,  207. 
Gilbert  v.   Burlington,   C.   R.   &   N. 

Ry.  Co.  (128  Fed.  529;    63  C.  C. 

A.  27),  406,  422,  478,  479,  482. 
Gilman  v.  Philadelphia  (3  Wall.  713; 

18  L.  Ed.  96),  30. 
Gilmer  v.  Philadelphia  (3  Wall.  713), 

31. 
Gist,  Ex  parte  (26  Ala.  156,  162,  164), 

283,  284,  286. 
Gladson    v.    Minnesota    (166    U.    S. 

427;    17  Sup.  Ct.  627;    41  L.  Ed. 

1064,  affirming  57  Minn.  385;    59 

N.  W.  487;   24  L.  R.  A.  502),  509. 
Glaze   V.   Josephine   Mills    (119   Ga. 

261;    46  S.  E.  99),  144. 
Gleason  v.  V.  M.  R.  Co.  (140  U.  S. 

435;    1  Sup.  Ct.  859;    35  L.  Ed. 

458),   518. 
Glenn  v.  Cincinnati,  N.  O.  &  T.  P. 

R.  Co.  (157  Ky.  453;    163  S.  W. 

461),  97,  203,  211. 
Gloucester  Ferry  Co.  v.  Pennsylvania 

(114  U.  S.  196;    5  Sup.  Ct.  826; 

29  L.  Ed.  158),  77. 
Glunt  v.  Pennsylvania  R.  Co.   (Pa.) 

(95  Atl.  109),  78. 
Goldenstein    v.    Baltimore    &    O.    R. 

Co.   (37  Wash.  Law  Rep.  2),  27, 

271,  491. 
Good  v.  Towns  (56  Vt.  410),  227. 
Goodwin  v.   Bodeau,   etc.,   Co.    (109 

La.   1050;    34  So.  74),  230. 


xl 


TABLE    OF   CASES. 


[References  are  to  pages.] 


Gordon  v.  New  Orleans  &  G.  N.  R. 

Co.    (135  La.    137,   736;   64   So. 

1014),  315,  405. 
Gottlieb  V.  North  Jersey  St.  Ry. 

Co.   (72  N.  J.  Law  480;  63  Atl. 

339),  250. 
Graber  v.  Duluth,  S.  S.  &  A.  R.  Co. 

(Wis.)  (150  N.  W.  489),  325. 
Grand  Trunk  W.  Rv.Co.  v.  Lindsay 

(233  U.  S.  42;  34"Sup.  Ct.  581;  58 

L.  Ed.  828,  affirming  201  Fed.  836; 

120  C.  C.  A.  166),  35,  69,  208,  255, 

256,  292,  310,  467,  469,  473,  477, 

482,  483,  485,  49C,  498. 
Grand  Trunk  W.   Ry.  Co.  v.  Poole 

(93  N.  E.  26),  484. 
Granger  v.  Pennsylvania  R.  Co.  (84 

N.  J.  L.  338;  86  Atl.  264),  84,  106, 

116. 
Grant  v.   Drj-sdale   (10  Rep.   1161), 

600. 
Gray  v.  Bennett  (3  Met.  522),  393. 
Gray  v.  Chicago  &  N.  W.  Ry.  Co. 

(153  Wis.  637;    142  N.  W.  505) 

105,  106. 
Gray  v.  Louisville  &  N.  R.  Co.  (197 

Fed.  874),  340,  352,  366,  369,  399. 
Great  Northern  Ry.  Co.  v.  INIusteli 

(222  Fed.  879),  94. 
Great   Northern  Ry.   Co.   v.  United 

States  (211  Fed.  309;   127  C.  C.  A. 

595,  affirming  206  Fed.  838),  523, 

526,  538. 
Great  Northern   Ry.   Co.   v.   United 

States   (218   Fed.   302),   526,   535, 

539. 
Greene,  In  re  (52  Fed.  104),  57. 
Greenlee  v.   Southern   Ry.   Co.   (122 

N.  C.  977;    30  S.  E.  115;    11  Am. 

&  Er-g.  R.  Cas.  (N.  S.)  45;    41  L. 

R.  A.  399;   65  Am.  St.  Rep.  734), 

467,  469,  470,  472,  477. 
Griffin  V.  Willow  (43  Wis.  509),  162. 
Griffith    V.   Lexington,   etc.,   Ry.   Co. 

(124  Ca.  553;    53  S.  E.  97),   145. 


Griffiths  V.  Eari  of  Dudley  (9  Q.  B. 

357),  6. 
Grosso    V.    Delaware,    etc.,    R.    Co. 

(50  N.  J.  L.  317;   13  Atl.  233),  217. 
Grov.-  V.  Oregon  Short  Line  R.  Co. 

(44  Utah  160;    138  Pac.  398),  5, 

39,  75,  78,  98,  99,  101,  304. 
Guana  v.  Southern  Pac.  Co.  (15  Ariz. 

413;    139  Pac.  782),  97,  203,  205, 

310,   311. 
Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Beezley 

(Tex.  Civ.  App.)  (153  S.  W.  651), 

213,  214,  252,  303. 

Gulf,  C.  &  S.  F.  R.  Co.  V.  Fort  Grain 
Co.  (Tex.  Civ.  App.)  (73  S.  W. 
845),  57. 

Gulf,  C.  &  S.  F.  Ry.  Co.  v.  Lester 
(Tex.  Civ.  App.)  (149  S.  W.  841), 

214,  310. 

Gulf    C.  &  S.  F.  Ry.  Co.  v.  Texas 

(204  U.  S.  403;    24  Sup.  Ct.  360; 

51   L.  Ed.  540,  affirming  97  Tex. 

274),  56,  715,  720,  721. 
Gulf,    Colorado,    etc.,    Ry.    Co.    v. 

Hefley    (158   U.    S.    98;     15   Sup. 

Ct.  802;    39  L.  E.  910),  30,  31, 

386,  509,  572,  595. 
Gulf,    Colorado,    etc.,    Ry.    Co.    v. 

McGinnis  (228  U.  S.  173;   33  Sup. 

Ct.  426;    57  L.  Ed.  785,  reversing 

(Tex.  Civ.  App.)  147   S.  W.  1188), 

203,  208,  222,  224,  230,  240,  242, 

258,  259,  321. 
Gulf,  etc.,  R.  Co.  v.  Brown  (33  Tex. 

Civ.  App.  269;  76  S.  W.  794),  247. 
Gulf,  etc.,  R.  Co.  V.  Ellis  (165  U.  S. 

150;    17  Sup.  Ct.  255;    41  L.  Ed. 

666,  reversing  87  Tex.  19;   26  S.  W. 

985),  17,  19. 
Gulla  V.   Lehigh,   etc.,   Co.    (28  Pa. 

Super.  Ct.  11),  228. 
Cunn  V.  Barry  (15  Wall.  610),  584. 


TABLE    OF    CASES. 


xli 


[References  are  to  pages. 


H 


Hackney  v.  Missouri,  K.  &  T.  Ry. 

Co.    (Kan.)    (149   Pac.    421),    208, 

255,  256,  292. 
Haggerty    v.    Central    Railroad    Co. 

(31  N.J.  Law  349),  223. 
Haines   v.    Pearson    (100    Mo.   App. 

551;  75S.  W.  194),247. 
Hale  V.   Henkel   (201   U.   S.  74,  75, 

665,  666;    26  Sup.  Ct.  370;    50  L. 

Ed.  652,  affirming  139  Fed.  496), 

511. 
Haley    v.    Mobile,    etc.,    R.    Co.    (7 

Baxt.    (Tenn.)   239),   219. 
Hall  V.  Canadian,  etc.,  Co.  (2  Mon- 
treal L.  N.  245),  6. 
Hall  V.  Chicago,  etc.,  Ry.  Co.  (149 

Fed.  564),  15,  30,  489. 
Hall  V.  DeCuir  (95  U.  S.  485,  488- 

490,    497,    498-513;     U.    S.    485, 

488-490,  497,  498-513;    24  L.  Ed. 

547),  387. 
Hall  V.  Louisville,  etc.,  R.  Co.  (157 

Fed.  464),  216,  233,  309. 
Halverson    v.    Seattle    El.    Co.    (35 

Wash.  600;    77  Pac.  1058),  246. 
Hamilton    v.    Hyde    Park    Foundry 

(22  Sc.  L.  R.  709),  600. 
Hamilton   v.    Morgan,    etc.,    R.    Co. 

(42    La.    Ann.    824;     8    So.    586), 

210. 
Hammill  v.   Pennsylvania  R.  Co. 

(N.  J.)   (94  Atl.  313),  66. 
Hammond  v.  Mukwa  (40  Wis.  35), 

162. 
Hammond  v.  Whittredge   (204  U. 

S.  538;  27  Sup.   Ct.  396;  51   L. 

Ed.  606,  affirming  189  Mass.  45; 

75  N.  E.  222),  413. 
Hammond  Packing  Co.  v.  Arkan- 
sas (212  U.  S.  348,  349;  29  Sup. 

Ct.    370;     53    L.    Ed.    543,    544), 

511. 
Hancock    v.    Norfolk,    etc.,    R.    Co. 

(124   N.   C.   222;    32  S.   E.   679), 

12,  17,  67. 


Hanley  v.  Kansas  City  So.  Ry.  Co. 

(187  U.  S.  617;    23  Sup.  Ct.  214; 

47  L.  Ed.  33,   affirming  106  Fed. 

353),  58,  349,  355. 
Hanna  v.   Jeffersonville  R.   Co.    (32 

Ind.  113),  231,  232. 
Hans    v.    Louisiana    (134   U.   S.    1), 

812. 
Hansford  v.   Payne   (11   Bush.  380), 

236,  261. 
Harden    v.    North    Carolina   R.    Co. 

(129   N.   C.   354;    40   S.   E.    184; 

55  L.  R.  A.  784),  380,  397,  405, 

487. 
Hardwick   v.    Wabash    R.    Co.    (181 

Mo.  App.   156;    168  S.  W.  328), 

4,  36,  42,  95,  242,  243,  255,  258, 
287,  322. 

Haring  v.   Great  Northern  Ry.   Co. 

(137  Wis.  367;    119  N.  W.  325), 

14. 
Harkins    v.    Philadelphia    (15    Phila. 

286),  227. 
Ilarriman  v.  Northern  Securities  Co. 

(197  U.  S.  244),  812. 
Harris   v.    Central   R.    Co.    (78   Ga. 

525;    3  S.  E.  355),  303. 
Harris  v.  City  &  E.  G.  R.  Co.  (69 

W.  Va.  65;  70  S.  E.  859),  104. 
Harrisburg,    The    (119    U.    S.    199; 

7   Sup.   Ct.    140;   30  L.   Ed.   358, 

reversing   15  Fed.  610),   217,   231. 
Harrison  v.   Hughes   (125  Fed.  860; 

60  C.  C.  A.  442),  518. 
Hartford,    The    City    of    (97    U.    S. 

323;    24  L.  Ed.  930;    11  Blatchf. 

72;   Fed.  Cas.  No.  2752),  168. 
Hartigan   v.    Southern   Pac.    R.    Co. 

(86  Cal.  142;   24  Pac.  851),  274. 
Haskett   v.    Lush    (Mo.    App.)    (177 

5.  W.  712),  204. 

Plawaii  v.  Manchiki  (190  U.  S. 
197;  23  Sup.  Ct.  787;  47  L.  Ed. 
1016),  64. 


xlii 


TABLE    OF    CASES. 


[References  are  to  pages.] 


Hawkins     v.     Johnston     (105     Ind. 

29;  4  N.  E.  172),  176. 
Hawkins  v.  St.  Louis  &  S.  F.  R.  Co. 

(Mo.  App.)   (174  S.  W.  129),  36, 

42,  203,  204,  207,  292. 
Haynie  v.  Chicago,   etc.,   R.  Co.   (9 

lU.  App.  105),  303. 
Hearst  v.  St.  Louis,  I.  M.  &  S.  Ry. 

Co.   (Mo.  App.)    (173  S.  W.  86), 

36,  106,  214. 
Heath  V.  Wallace  (138  U.  S.  582), 

940. 
Hecht    V.    Ohio,    etc.,    R.    Co.    (132 

Ind.  507;    32  N.  E.  302;    54  Am. 

&  Eng.  R.  Cas.  75),  218,  233,  273. 
Heidcamp   v.   Jersey   City,    etc.,    R. 

Co.    (69   N.   J.    L.    284;     55   Atl. 

239),  228. 
Heil  V.  Glanding  (42  Pa.  St.  499), 

175. 
Heimbach  v.   Lehigh  Valley  R.   Co. 

(197  Fed.  579),  99. 
Helm   V.    Cincinnati,    N.  O.  &  T.  P. 

Ry.  Co.  (156  Ky.  240;    160  S.  W. 

945),  204. 
Hench     v.     Pennsylvania     R.     Co. 

(246    Pa.    1;     91    Atl.    1056),    41, 

297,  315,  316,  403. 
Henchey   v.    Chicago    (41    111.    136), 

274. 
Henderson    v.     Mayor     (92    U.     S. 

259;  23  L.  Ed.  543),  31. 
Hendricks  v.   Western,   etc.,   R.   Co. 

(52  Ga.  467),  142. 
Hennessey    v.    Bavarian,    etc.,    Co. 

(145    Mo.    104;     46   S.    W.    960), 

234. 
Henning     v.     Louisville,     etc.,     Co. 

(Ky.)  (12  S.  W.  550),  229. 
Hennington   v.    Georgia    (163   U.    S. 

299;    10  Sup.  Ct.  1086;    41  L.  Ed. 

160,  affirming  90  Ga.  390;   17  S.  E. 

1009),  509. 


Henry  B.  Fiske,  The  (141  Fed.  188), 

173. 
Hepner    v.    United    States    (213    U. 

S.   114;    29  Sup.  Ct.  499;    53  L. 

Ed.  720;   27  L.  R.  A.  (N.  S.)  739; 

10  A.  &  E.  Ann.  Cas.  900),  499. 
Herman    v.    New    Orleans,    etc.,    R. 

Co.  (11  La.  Ann.  5),  217. 
Herrick  v.  Minneapolis,  etc.,  R.  Co. 

(31    Minn.    11;     10   N.    W.    413), 

12. 
Herrick  v.  Minneapolis,  etc.,  R.  Co. 

(32   Minn.   435;    21   N.   W.   471), 

12,  17. 
Herring   v.   Atlantic   Coast   Line   R. 

Co.  (N.  C.)  (84  S.  E.  803),  273. 
Hewill    v.    East,    etc.,    Co.    (Mich.) 

(98  N.  W.  992),  240. 
Hicks  v.  Barrett  (40  Ala.  291),  234. 
Hicks    V.    Southern    R.    Co.    (03    S. 

C.  559;   41  S.  E.  753),  11. 
Higgins  V.  Cherokee  R.  Co.  (73  Ga. 

149),  144. 
Higgins    V.     Yelverton     (Yelv.    89), 

217. 
Hill    v.    Callahan    (82    Ga.    113;     8 

S.  E.  730),  143. 
Hill    V.    Nashville,    etc.,    R.    Co.    (9 

Heisk.  823),  147,  175. 
Hill    V.    New   Haven    (37   Vt.    501), 

231. 
Hill    V.    Pennsylvania    R.    Co.    (178 

Pa.  St.  223;    35  Atl.  997;    35  L. 

R.  A.  190;   39  W.  N.  C.  221),  273. 
Hilton     Lumber     Co.     v.     Atlantic 

Coast   Line    Railroad    (141    N.   C. 

171;    53  N.  E.  823;    6  L.  R.  A. 

(N.  S.)  225),  493. 
Hinsdale  v.  New  York,  etc.,  R.  Co. 

(81  N.  Y.  App.  Div.  617),  247. 
Hirschkovitz     v.     Pennsylvania     R. 

Co.  (C.  C.)  (138  Fed.  438),  224. 
Hitchcock    V.    Munger    (15    N.    H. 

97),    500. 


TABLE    OF    CASES. 


xliii 


[References  are  to  pages. 


Hobbs  V.  Bowie  (121  Ga.  421;    49 

S.  E.  285),  147. 
Hobbs  V.    Great  Northern   Ry.   Co. 

(SO  Wash.  678;    142  Pac.  20),  292. 
Hodges  V.  Webber    (65  N.  Y.  App. 

Div.   170;    72  N.  Y.  Supp.  508), 

235. 
Hodnett    v.    Boston,    etc.,    R.    Co. 

(156  Mass.  86;   30  N.  E.  224),  226. 
Hogerty   v.   Philadelphia   &   R.    Ry. 

Co.    (245  Pa.  443;    91   Atl.  854), 

36,  266,  273,  313. 
Hohenleitner   v.    Southern   Pac.    Co. 

(177  Fed.  796),  354,  356,  357,  400, 

402.  405,  406. 
Holden   v.    Hardy    (169   U.    S.   366; 

42  L.  Ed.  780;    18  Sup.  Ct.  383, 

affirming   14  Utah,  71;    37   L.   R. 

A.    103;    46  Pac.  756;     14  Utah, 

96;    37   L.    R.   A.    108;    46   Pac. 

1105),  12,  601. 
HoUenbeck  v.   Berkshire   R.   Co.    (9 

Cush.  478),  236,  261. 
Holmes  v.   Clarke   (6  Hurlst.   &   N. 

349;    30  L.  J.  Exch.  (N.  S.)   135; 

7  Jur.  (N.  S.)  397;   3  L.  T.  (N.  S.) 

675;  9  W.  R.  419),  200. 
Holmes    v.    Railway    Co.    (6    Sawy. 

262;  5  Fed.  523),  168. 
Hopkins  v.  Southern  Ry.  Co.    (110 

Ga.  167;  35  S.  E.  70),  145. 
Horton  v.  Oregon-Wash.  R.  &  Nav. 

Co.  (72  Wash.  503;    130  Pac.  897), 

42,  80,  96,  102. 
Horton    v.    Seaboard    Air    Line    R. 

Co.    (157   N.    C.    146;     72   S.    E. 

958),  92,  178,  179,  315. 
Hosheit  v.  Lusk  (Mo.  App.)  (177  S. 

W.  712),  50. 
Hough  V.  Texas  &  P.  R.  Co.  (100  U. 

S.  213;    25  L.  Ed.  612,  reversing 

Fed.  Cas.  6221),  181,  200,  291. 
Houston  &  T.  C.  Ry.  Co.  v.  Bight 

(Tex.  Civ.  App.)  (156  S.W.  304),  35. 


Houston,   etc.,  Co.  v.   Ins.   Co.   (89 

Tex.  1;    32  S.  W.  889;    30  L.  R. 

A.  713;  53  Am.  St.  17),  347. 
Houston,  etc.,  R.  Co.  v.  Turner  (34 

Tex.    Civ.    App.    397;     78   S.    W. 

712),  246. 
Howard  v.   Illinois  Central  Ry.  Co. 

(207  U.  S.  403;    28  Sup.  Ct.  141; 

52  L.  Ed.  297),  14,  24,  573,  596. 
Hoxie  V.  New  York,  N.  H.  &  H.  R. 

Co.   (82  Conn.  352;    73  Atl.  764, 

reversed  223  U.  S.  1;   32  Sup.  Ct. 

169;     56    L.    Ed.    327),    23,    267, 

276,  278,  281,  576,  582. 
Hubert    v.    Topeka    (34    Fed.    510), 

244. 
Hubgh  V.  New  Orleans,  etc.,  R.  Co. 

(6  La.  Ann.  495),  217. 
Hudson    V.    Missouri,    K.    &    T.    R. 

Co.  (16  Kan.  470),  110. 
Hull  V.  Richmond  (2  Woodb.  &  M. 

337),  181. 
Hunter    v.    Illinois    Central    R.    Co. 

(188  Fed.  645;    110  C.  C.  A.  459), 

498. 
Huntington    v.    Attrill    (146    U.    S. 

657;    13  Sup.  Ct.  224;    36  L.  Ed. 

1123,    reversing    70    Md.    191;     2 

L.   R.   A.   779;     14   Am.   St.   344; 

16  Atl.  651),  431. 
Hutchison  v.  York,  etc.,  R.  Co.   (5 

Exch.   343;     14  Jur.   837;     19   L. 

J.  (Exch.)  296),  11. 
Hutchins   v.   St.   Paul,   etc.,   R.   Co. 

(44  Minn.  5;    46  N.  W.  79),  244. 
Hutchinson  Investment  Co.  v.  Cald- 
well (152  U.  S.  65;    14  Sup.  Ct. 

504;   38  L.  Ed.  356),  225. 
Hyatt    v.    Adams    (16    Mich.    180), 

217. 
Hyde  v.  Southern  Ry.  Co.  (31  App. 

D.  C.  466;   36  Wash.  L.  Rep.  374), 

22,  27,  40,  267. 


xliv 


TABLE    OF    CASES. 


[References  are  to  pages. 


lannone  v.  New  York,  etc.,  R.  Co. 

(21    R.   I.   452;    44  Atl.   592;    46 

L.  R.  A.  730;    79  Am.  St.  812), 

104. 
Illinois    Cent.     R.     Co.     v.     Backus 

(55  111.  379),  157,  160,  163. 
Illinois   Cent.   R.   Co.    v.   Barron    (5 

Wall.  90;    18  L.  Ed.  591,  affirming 

1    Biss.    453;     Fed.    Cas.    1053), 

244. 
Illinois    Cent.    R.    Co.    v.    Behrens 

(223  U.  S.  473;    33  Sup.  Ct.  648; 

34  Sup.  Ct.  646;    57  L.  Ed.  1125; 

58  L.  Ed.  1051;   Ann.  Cas.  1914  C, 

163),  22,  28,  29,  69,  71,  80,  97,  106, 

109,  126. 
Illinois    Central    R.    Co.    v.    Brook- 
shire  (3  111.  App.  225),  160. 
Illinois  Cent.   R.  Co.  v.  Cragin   (71 

111.  177),  164,  165. 
Illinois    Cent.    R.    Co.    v.    Doherty 

(153  Ky.  363;    155  S.  W.   1119), 

22,   35,   204,   222,   239,   240,    242, 

246,  286,  301,  303,  311. 
Illinois  Cent.   R.   Co.   v.   Egan   (203 

Fed.  937;    122  C.  C.  A.  239),  288, 

291,  324. 
Illinois    Cent.    R.    Co.    v.    Hammer 

(72  111.  351),  166. 
Illinois  Cent.  R.  Co.  v.  Nelson  (203 

Fed.  956;    212  Fed.  69),  96,  253, 

304,  307,  308,  319. 
Illinois  Cent.  R.  Co.  v.  McKendree 

(203  U.  S.  514;    27  Sup.  Ct.  153; 

51  L.  Ed.  298),  413. 
Illinois  Cent.   R.   Co.   v.   Maffit   (67 

III.  431),   163,   164. 
Illinois  Cent.  R.  Co.  v.  Pendergrass 

(09  Miss.  425;    12  So.  954),  261. 
Illinois  Cent.  R.  Co.  v.  Porter  (207 

Fed.  311;    125  C.  C.  A.   55),   96, 

209,  210,  237,  240,  254,  256,  301, 

302,  473. 


Illinois  Cent.  R.  Co.  v.  Rogers  (221 

Fed.  52),  68,  70,  84,  98,  116,  299. 
Illinois  Cent.  R.  Co.  v.  Stewart  (223 

Fed.  30),  230. 
Illinois  Cent.   R.  Co.  v.  Trowbridge 

(31  111.  App.  190),  162. 
Illinois,   etc.,   R.  Co.  v.  Ashline   (56 

111.  App.  475),  134. 
Illinois,    etc.,   R.   Co.   v.   Cozby    (69 

111.  App.  256),  273. 
Illinois,    etc.,    R.    Co.   v.   Green    (81 

111.  19),  154. 
Illinois,   etc.,    R.    Co.   v.    Hethering- 

ton  (83  lU.  510),  161,  162,  165. 
Illinois,    etc.,    R.    Co.    v.    IMiddles- 

worth  (43  111.  64),  163,  165. 
Illinois,  etc.,  R.  v.  Simmons  (38  111. 

242),  154,  163. 

Illinois,   etc.,   R.  Co.   v.   Slatton   (54 

III.  133),  154,  160,  161. 
Illinois,  etc.,  R.  Co.  v.  Triplett  (38 

111.  482,  485),  157. 
Indianapolis  &   G.   R.   Co.   v.   Fore- 
man (162  Ind.  85;   69  N.  E.  669), 

66. 
Indianapolis,  etc.,   R.   Co.   v.   Evans 

(88  lU.  63),  165. 
Indianapolis,   etc.,   R.   Co.   v.   Horst 

(93  U.   S.   291;    23  L.   Ed.  898), 

181. 
Indianapolis,  etc.,  R.  Co.  v.  Houghton 

(157  Ind.  494;    60  N.  E.  943;    54 

L.R.A.787),  12. 
Indianapolis,   etc.,   R.   Co.   v.   Keely 

(23  Ind.  133),  229. 
IndianapoHs,  etc.,  R.  Co.  v.  Stables 

(62  111.  313),  160,  163,  164. 
Indianapolis,   etc.,   R.   Co.   v.   Stout 

(53  Ind.  143),  274. 
Indianapolis,  T.  &  T.  Co.  v.  Kinney 

(171    Ind.    612;     85   N.    E.    954), 

19,  67. 


TABLE    OF    CASES. 


xlv 


[References  are  to  pages.] 


Indianapolis    Union    Ry.    Co.    v. 

Houlihan    {I'u    Ind.   494;  60  N. 

E.  943;  54  L.  R.  A.  787),  13,  17, 

19,  66. 
Ingle  V.  Southern  Ry.  Co.  (N.  C.) 

(83  S.  E.  744),  83. 
Ingraham  v.  Hilton,  etc.,  Co.  (108 

Ga.  194;  33  S.  E.  961),  144. 
Insurance  Co.  v.  Brame  (95  U.  S. 

754;  24  L.  Ed.  580),  217. 
Interuational   &   G.    N.    Ry.   Co.   v. 

Elder    (44    Tex.    Civ.    App.    605; 

99  S.  W.  856),  414,  489. 
International    &    G.    N.    R.    Co.    v. 

Lehman   (Tex.   Civ.   App.)    (72   S. 

W.  619),  259. 
International,  etc.,  R.  Co.  v.  Boykin 

(32  Tex.  Civ.  App.  72;    85  S.  W. 

1163),  227,  247. 
International,  etc.,  R.  Co.  v.  Glover 

(13  Tex.  Civ.  App.  263;    88  S.  W. 

515),  302. 
International,  etc.,  R.  Co.  v.  Kindred 

(57  Tex.  491),  219. 
International,  etc.,  R.  Co.  v.  Kuehn 

(70  Tex.  582;  8  S.  W.  484),  233,  274. 
International  Text  Book  Co.  v.  Pigg 

(217  U.  S.  91;    30  Sup.  Ct.  481; 

54  L.  Ed.  678),  57. 
Interstate  Commerce  Commission  v. 

Baird  (194  U.  S.  25;    25  Sup.  Ct. 

563;    48  L.  Ed.  860,  reversing  123 

Fed.  969),  400. 
Interstate  Commerce  Commission  v. 

Bellaire,    0.    &    C.    Ry.    Co.    (77 

Fed.  942),  58,  378. 
Interstate  Commerce  Commission  v. 

Detroit,  G.  H.  &  M.  R.  Co.  (167 

U.  S.  633,  642;    17  Sup.  Ct.  986; 

'42  L.  Ed.  306,  affirming  74  Fed. 

803;    21   C.   C.   A.    103,   reversing 

57  Fed.  1005),  56,  59,  387. 
Interstate  Commerce  Commission  v. 

Illinois  Central  R.  Co.  (215  U.  S. 

452;    30  Sup.  Ct.  155;    54  L.  Ed. 

280),  77. 


Interstate  Commerce  Commission  v. 
Seaboard  A.  L.  Ry.  Co.  (82  Fed. 
563),  59. 

Interstate  Stock  Yards  v.  Indian- 
apolis Union  Ry.  Co.  (99  Fed.  472), 
367. 

Ireland  v.  Oswego,  etc.,  R.  Co.  (13 
N.  Y.  533),  176. 

Irwin  V.  Railroad  Co.  (164  N.  C. 
454;  80  S.  E.  78),  245. 

Isbell  V.  New  York,  etc.,  R.  Co. 
(27  Conn.  393),   176. 

Ives  V.  South  Buffalo  Ry.  Co.  (201 
N.  Y.  271;  94  N.  E.  431,  reversing 
140  App.  Div.  921;  125  N.  Y. 
Supp.  1125;  which  affirmed  68 
N.  Y.  Misc.  Rep.  643;  124  N.  Y. 
Supp.  920),   14. 


J.    &    J.    McCarthy,    The    (55    Fed. 

86),  168. 
Jackson  v.  Chicago,  M.  &  St.  P.  Ry. 

Co.  (210  Fed.  495),  51,  74,  82,  105. 
Jackson  v.  Chicago,   R.   I.  &  P.   R. 

Co.  (178  Fed.  432),  110. 
Jackson   v.    Nashville,    etc.,    K.    Co. 

(13  Lea,  491;    49  Am.  Rep.  663), 

147,  175. 
Jacksonville,  etc.,   R.  Co.   v.   South- 
worth    (135    lU.    250;     25    N.    E. 

109.3),  159. 
Jacobson   v.   Massachusetts   (197   U. 

S.  11),  816. 
James    D.    Leacy,    The    (110    Fed. 

685;    affirmed  113  Fed.   1019;    51 

C.  C.  A.  620),  168. 
Jefferson  v.  Chapman  (127  111.  438; 

20  N.  E.  33),  159. 
Jefferson     Branch     Bank    v.     Skelly 

(1  Black.  436),  584. 
Jeffersonville,    etc.,    R.    Co.    v.    Hen- 
dricks (41  Ind.  48),  229,  231,  232, 

234. 


xlv: 


TABLE    OF    CASES. 


[References  are  to  pages. 


Jenkins  v.  Central  R.  Co.  (89  Ga. 

756;  15  S.  E.  655),  144. 
Jennings  v.  Railroad  Co.  (96  Minn. 

302;  104  N.  W.  1079),  65. 
Jensen  v.  Southern  P.  Co.  (N.  Y.) 

(109  N.  E.  600),  36,  93,  273. 
Jensen  v.   Wisconsin  Central   Ry. 

Co.    (145  Wis.   326;   128   N.   W. 

982),  197. 
Jeremiah  Godfrey,   The    (17   Fed. 

738),  168. 
Joel  V.  Morrison  (6  C.  &  P.  501),  111. 
Johnson  v.  Chicago  G.  W.  Ry.  Co. 

(Mo.    App.)     (164     S.     W.    260), 

351,  406,  484. 
Johnson  v.  Great  Northern  Ry.  Co. 

(178  Fed.  643,  646;    102  C.  C.  A. 

89),  82,  93,  333,  365,  366,  407,  421, 

426,  469,  472,  478,  484,  486. 
Johnson  v.  Philadelphia,  etc.,  R.  Co. 

(163  Pa.  St.  127;  29  Atl.  854),  266. 
Johnson  v.  Railroad  Co.   (43  IMinn. 

222;    45  N.  W.  156;    8  L.  R.  A. 

419),  65. 
Johnson   v.   Southern   Pac.   Ry.    Co. 

(196  U.  S.   1;    25   Sup.   Ct.    158; 

49  L.  Ed.  363,  reversing  117  Fed. 

462;   54  C.  C.  A.  508),  22,  24,  41, 

59,  67,  118,  199,  331,  332,  334,  335, 

340,  354,  356,  357,  363,  306,  370, 

393,  397,  400,  401,  402,  405,  406, 

408,  431,  405,  489,  514,  602,  724, 

726,  849,  850,  858,  927. 
Johnson   v.    St.    Paul,   etc.,    R.   Co. 

(43   Minn.   222;    45   N.   W.    156; 

8  L.  R.  A.  419),  17,  19. 
Johnson  v.  United  States  (196  U.  S. 

1;   25  Sup.  Ct.  Rep.  158,  reversing 

54  CCA.  508;  117  Fed.  462),  399. 
Jones  V.  Charleston  &  W.  C  Ry.  Co. 

(98  S.  C  197;    82  S.  E.  415),  35, 

222,  224. 
Jones   V.    Chesapeake,    etc.,    R.    Co. 

(149    Ky.    .566;     149    S.    W.    951; 

modified,  153  Ky.  378;    155  S.  W. 

723),  .36,  72,  7S,  100.  301,  313. 


Jones   V.   Kansas   City   So.   Ry.   Co. 

(La.)   (68  So.  401),  223,  237,  253, 

287,  312. 
Jones  V.  Kansas  City  (178  Mo.  528; 

77  S.  W.  890),  247. 
Joseph  Stickney,  The  (31  Fed.  156), 

167,  169. 
JuHa  Fowler,  The  (49  Fed.  279),  168. 
Jungnitsch    v.    Michigan,    etc.,    Co. 

(105  Mich.  270;    63  N.  W.  296; 

2  Det.  Leg.  N.  107),  11. 
Juniata,  The  (93  U.  S.  337;    23  L. 

Ed.  930),  167. 


Kaght  V.  Sadtler,  etc.,  Co.  (91  Mo. 

App.  574),  245. 
Kamboris  v.  Oregon  &  Wash.  R.  & 

Nav.  Co.   (Ore.)   (146  Pac.   1097), 

36,  95,  96,  280,  302,  313. 
Kansas    City,     etc..     R.     Co.     v. 

Crocker  (95  Ala.  412),  396. 
Kansas  City,  etc.,  R.  Co.  v.  Daugh- 

erty    (88   Tenn.    721;    13    S.    W. 

698),  219. 
Kansas  City,  etc.,  R.  Co.  v.  Flippo 

(138  Ala.  487;  35  So.  457),  280, 

334,  369,  392,  403,  414,  487,  489, 

490,  491. 
Kansas  City,  M.  &  O.  Ry.  Co.  v. 

Pope  (Tex.  Civ.  App.)  (152  S.  W. 

185,  153  S.  W.  103),  36,  95,  214. 
Kansas  City  M.  &  O.  Ry.  Co.  v. 

Roe    (Okla.)     (150    Pac.    1035), 

240. 
Kansas    City    So.    R.    Co.    v.    Cook 

(100  Ark.  467;   140  S.  W.  579),  97, 

295,  300. 
Kansas  City   So.   Ry.   Co.   v.   Leslie 

(35  Sup.  Ct.  844,  reversing  112  Ark. 

305;     167   S.   W.   83,   844),    220a, 

220b,  242,  263,  264,  287,  319. 
Kansas  City  So.  Ry.  Co.  v.  Loesey 

(Ark.)  (177  S.  W.  875),  202. 
Kansas  City  So.   Ry.   Co.   v.    Miller 

(Ark.)  (175  S.  W.  1164),  98. 


TABLE    OF    CASES. 


xlvii 


[References  are  to  pages. 


Kansas  City  So.  Ry.  Co.  v.  Quigley 

(181  Fed.  190),  507. 
Kansas  City  So.  Ry.  Co.  v.  Railroad 

Commission    (106    Fed.    359),    58, 

355. 
Kansas   Pacific   Ry.    Co.   v.    Peavey 

(29  Kan.  169;    44  Am.  Rep.  630), 

12,  133. 
Kansas   Pacific   Ry.    Co.   v.   Pointer 

(14  Kan.  37),  133,  173. 
Kaufman  v.  Cleveland,  etc.,  R.  Co. 

(144  lad.  456;   43  N.  E.  446),  218. 
Kearney    v.    Boston    &    W.    R.    Co. 

(9  Cush.  108),  236,  261. 
Kelley  v.  Chicago,  etc.,  R.  Co.   (50 

Wis.  381;    7  N.  W.  291),  302. 
Kelley    v.    Ohio,    etc.,    R.    Co.    (58 

W.  Va.  216;    52  S.  E.  520),  249. 
Kelley    v.    Rhoades    (188    U.    S.    1; 

23  Sup.  Ct.  259;    47  L.  Ed.  359, 

reversing    9    Wyo.    352;     87    Am. 

St.  959;    63  Pac.  935),  347. 
Kelly   V.   Chesapeake   &   O.    R.   Co. 

(201   Fed.   602),   35,   43,   69,   287, 

288,  295,  300,  310,  313. 
Kelly    V.    Great    Northern    Ry.    Co. 

(152  Fed.  211),  24,  129,  335,  356. 
Kelly  V.  Illinois  Central  R.  Co.  (140 

111.  App.  125),  443. 
Kennedy  v.   Standard  Sugar  &   Re- 
finery (125  Mass.  90;   28  Am.  Rep. 

214),  261. 
Kenney  v.  New  York,  etc.,  Co.   (49 

Hun,   535;    2  N.   Y.   Supp.   512), 

302. 
Kenney  v.  Seaboard  Air  Line  R.  Co. 

(165  N.  C.  99;  80  S.  E.  1078;   166 

N.  C.  566;   80  S.  E.  1078;  82  S.  E. 

968),  225,  227,  245,  246,  253,  255, 

302,  307,  308. 
Kentucky  Bridges,  etc.,  Co.  v.  Sydor 

(82  S.  W.  989;   26  Ky.  L.  951;    68 

L.  R.  A.  183),  148. 


Kentucky,  etc.,  R.  Co.  v.  McGinty 

(12  Ky.  482;    14  S.  W.  Rep.  601), 

229. 
Kentucky,   etc.,   R.   Co.   v.   Thomas 

(79  Ky.   160;    42  Am.  Rep.  208), 

175. 
Kentucky,    etc.,    R.    Co.    v.    Wain- 

wright  (Ky.)   (13  S.  W.  438),  229. 
Keokuk    Packet    Co.    v.    Henry    (50 

111.   264),   164. 
Kepperly  v.   Ramsden  (83  HI.  354), 

154,    162. 
Kern  v.  Chicago,  M.  &  P.  S.  Ry.  Co. 

(201   Fed.   404),   101. 
Kerr  v.  Forque  (54  lU.  482),  161. 
Ketchum  v.   Chicago,  St.  P.,  M.  & 

O.  Ry.  Co.  (Wis.)  (136  N.  W.  634), 

197. 
Kewanee  v.  Depew  (80  111.  119),  164. 
Kiley  v.  Chicago,  M.  &  St.  P.  Ry. 

Co.    (145   Wis.   326;     128   N.   W. 

982),  23. 
Kiley  v.  Chicago,  M.  &  St.  P.  R.  Co. 

(138  Wis.   215;     119  N.  W.   309; 

120  N.  W.  756),  14,  23,  179. 
Kilpatrick  v.  Grand  Trunk  Ry.  Co. 

(72  Vt.  288;    47  Atl.  827),  198. 
Kilpatrick   v.   Railroad   Co.    (74  Vt. 

288;     52    Atl.    531;     93    Am.    St. 

887),  491. 
Kindellen  v.  Mt.  Washington  R.  Co. 

(76  N.  H.  54;    79  Atl.  691),   104. 
Kinney  v.  Central  R.  Co.  (34  N.  J.  L. 

273),  234. 
Kirbo  V.  Southern  Ry.  (Ga.  App.) 

(84  S.  E.  491),  201,  203,  209. 
Kirby  v.  United  States  (174  U.  S. 

55;   19  Sup.   Ct.  574;  43  L.  Ed. 

809),  431. 
Kiser  v.  Metropolitan  St.  R3'.  Co. 

(Mo.)  (175  S.  W.  98),  106. 
Knapp  V.  Great  Northern  Rv.  Co. 

(Minn.)  (153  N.  W.  848),  36,  96, 

212,  253,  294.  296,  307,  319. 
Knott  V.  Peterson  (125  la.  404;  101 

N.  W.  173,  524),  245,  246. 


xlviii 


TABLE    OF    CASES. 


[References  are  to  pages.] 


KnoT.les  v.  New  York,  N.  H.  &  H. 

R.   Co.    (164  App.    Div.   — ;     150 

N.  Y.  Supp.  99),  95,  101,  297,  315. 
Knoxville,  etc.,  R.  Co.  v.  Acuff  (92 

Tenn.  26;   20  S.  W.  348),  274. 
Koehler,  Ex  parte  (30  Fed.  867),  58. 
Koening  v.  City  of  Covington  (Ky.) 

(17  S.  W.  128),  229. 
Koennecke  v.  Seaboard  A.  L.  R. 

Co.  (S.  C.)  (85  S.  E.  374),  313, 

319. 
Korrady  v.  Lake  Shore,  etc.,   R. 

Co.  (131  Ind.  261;  29  N.  E.  1069), 

302,  303. 
Kramer  v.  Market  St.  Ry.  Co.  (25 

Cal.  134),  217. 
Kuhns  V.  Wisconsin,  etc.,  Ry.  Co. 

(76  Iowa,  67;  40  N.  W.  92),  232. 
Kumler  v.  Junction  R.  Co.  (33  Ohio 

St.  150),  104. 
Kyes  V.  Valley  Telephone  Co.  (132 

Mich.  281;  93  N.  W.  623),  261. 


La  Burgogne,  In  re,  (117  Fed.  261), 

217. 
La  Casse  v.  New  Orleans,  T.  &  M. 

R.  Co.  (135  La.  129;  64  So.  1012), 

35,  105,  107,  214,  215. 
Lackawanna,    The    (151    Fed.    499), 

167. 
Ladd  V.  Minneapolis,  St.  P.  &  S.  S. 

M.   Ry.  Co.   (142  Wis.   165;    125 

N.  W.  468),  23. 
Lake  Erie,  etc.,  R.  Co.  v.  Charmer 

(161  Ind.  95;    67  N.  E.  629),  213. 
Lake    Shore   &    M.    S.    Ry.    Co.    v. 

Benson  (97  N.  E.  417),  340,  397. 
Lake  Shore  &  M.  S.  R.  Co.  v.  United 

States  (93  U.  S.  442),  345. 
Lake  Shore,  etc.,  R.  Co.  v.  Johnson 

(135  111.  041;    26  N.  E.  510),  159. 
La    Mere   v.    Railway   Transfer   Co. 

(125  Minn.  159,  526;    145  N.  W. 

IOCS),  203,  250,  340,  353,406,  409, 

473,  485. 


Lamphear  v.  Buckingham  (33  Cona. 

237),  229. 
Lamphere  v.  Oregon,  R.  &  Nav.  Co. 

(196  Fed.  336;    116  C.  C.  A.  156; 

47  L.   R.  A.    (N.   S.)   1,   reversing 

193  Fed.  248),  70,  72,  76,  91,  101, 

127. 
Lanark  v.  Dougherty   (153  111.   163; 

38  N.   E.  892),   134. 
Landigan  v.  New  York,  etc.,  R.  Co. 

(5  Civ.  Proc.  (N.  Y.)  76),  231. 
Larabee  v.  New  York,  N.  H.  &  H. 

R.  Co.  (182  Mass.  348;    66  N.  E. 

1032),  397. 
Latremouille  v.   Bennington   (63  Vt. 

336;    22  Atl.  656;    48  Am.  &  Eng. 

R.  Cas.  265),  11. 
Lauer    v.    Northern    Pac.    Ry.    Co. 

(Wash.)    (145   Pac.    606),   36,    39, 

42,  201,  313. 
Lavalle    v.    St.    Paul,    etc.,    R.    Co. 

(40  Minn.   249;    41   N.  W.  974), 

17,  19. 
Law   V.    Illinois   Cent.    R.    Co.    (208 

Fed.  869;    126  Fed.  27),  70,  73,  76, 

100. 
Lee  V.  Toledo,  St.  li.  &  W.  R.  Co. 

(193  Fed.  685,  768),  287,  288. 
Lehigh   Valley   R.   Co.   v.   Common- 
wealth (Pa.)  (18  Atl.  125),  58,  355. 
Lehigh    Valley    R.    Co.    v.    Pennsyl- 
vania (145  U.  S.  192;    12  Sup.  Ct. 

806;   36  L.  Ed.  672),  355. 
Lehmann   v.    Folwell    (95   Wis.    185; 

70  N.  W.  170;    37  L.  R.  A.  333; 

CO  Am.  St.  Ill),  261. 
Leisy  v.  Hardin  (135  U.  S.  100;    10 

Sup.    Ct.    081;     34    L.    Ed.    128, 

reversing  78  Iowa,  286;    43  N.  W. 

188),  347. 
Lelt  v.   St.   Lawrence  &   0.   R.   Co. 

(11  Ont.  App.  Rep.   1),  241. 
Levin    v.    United    States    (128    Fed. 

S20;    03  C.  C.  A.  476),  286. 


TABLE  OF  CASES. 


xlix 


[References  are  to  pages. 


Lewis  V.  Pennsylvania  R.  Co.  (220 

Pa.  317;  69  Atl.  821),  490. 
Lilly  V.  Charlotte,  etc.,  R.  Co.  (32 

S.  C.  142;  10  S.  E.  932),  229. 
Lindstron    v.    International,    etc., 

Co.  (117  Fed.  170),  218. 
Litlewood  v.  Mayor  (89  N.  Y.  24, 

affirming  15  J.  &  S.  547),  273. 
Little  V.  Southern  Ry.  Co.  (120  Ga. 

347;  47  S.  E.  953),  145. 
Little    Rock,    etc.,    Ry.    Co.    v. 

Barker  (33  Ark.  350),  217. 
Little  Rock,  etc.,  R.  Co.  v.  Leverett 

(48  Ark.  333;  3  S.  W.  50),  235. 
Lloyd  V.   North  Carolina  R.   Co. 

(151  N.  C.  536;  66  S.  E.  604),  510. 
Lloyd  V.  Southern  Ry.  Co.  (166  N. 

C.  24;  81  S.  E.  1003),  60,  94,  97, 

200,  208,  292,  293,  294,  311,  312. 
Logan  V.  United  States  (144  U.  S. 

263),  584. 
Lombardo  v.  Boston  &  M.  R.  Co. 

(223  Fed.  427),  74,  287. 
Lord  V.  Pueblo,  etc.,  R.  Co.   (12 

Colo.  390;  21  Pac.  148),  235. 
Louisville  &  N.  R.  Co.  v.  Allen  (152 

Ky.  145;  153  S.  W.  198;  152  Ivy. 

837;  154  S.  W.  371),  58. 
Louisville  &  N.  R.  Co.  v.  Barrett 

(85  S.  E.  923),  108,  311. 
Louisville  &  N.  R.  Co.  v.  Fleming 

(Ala.)    (69  So.    125),   208,   220b, 

242,  243,  245,  247,  255,  258,  262, 

297,  305,  306,  315,  325. 
Louisville  &  N.  R.  Co.  v.  Hender- 
son (Ky.)  (173  S.  W.  343),  255. 
Louisville  &  N.  R.  Co.  v.  Hcnig 

(162  Ky.  14;  171  S.  W.  853),  292. 
Louisville  &  N.  R.  Co.  v.  Hill  (115 

Ala.  334),  810. 
Louisville  &  N.  R.  Co.  v.  Holloway 

(Ky.)  (173  S.  W.  343),  256,  292, 

293,  294. 
Louisville  &  N.  R.  Co.  v.  Joluison 

(161  Ky.  824;  171  S.  W.  847),  240, 

258. 


Louisville  &  N.  R.  Co.  v.  Kemp 

(140  Ga.  657;  79  S.  E.  558),  35. 

78,  100,  292,  293. 
Louisville  &  N.  R.  Co.  v.  Lankford 

(209  Fed.  321;  126  C.  C.  A.  247), 

95,  212,  256,  257,  292. 
Louisville  &  N.  R.  Co.  v.  Moore 

(156  Ky.  708;  161  S.  W.   1129), 

101,  105,  305. 
Louisville  &  N.  R.  Co.  v.  Mottley 

(219  U.  S.  467;  31  Sup.  Ct.  265; 

55  L.  Ed.  297),  272. 
Louisville  &  N.  R.  Co.  v.  Parker 

(165  Ky.  658;  117  S.  W.  465),  106. 
Louisville  &  N.  R.  Co.  v.  Scott  (108 

Ky.  382;  56  S.  W.  674;  50  L.  R. 

A.  381),  104. 
Louisville  &  N.   R.   Co.  v.   Scott 

(219  U.  S.  209;  31  Sup.  Ct.  171; 

55  L.  Ed.  183),  491. 
Louisville  &  N.  R.  Co.  v.  Stewart 

(156   Ky.    550;    161    S.    W.    557; 

modified,  157  Ky.  642;  163  S.  W. 

755;   174  S.   W.   744),   237,   239, 

242,  246,  252,  258,  293,  294. 
Louisville  &  N.  R.  Co.  v.  Strange 

(1.56  Kv.  4.39;  161  S.  W.  239),  4, 

36,  52,  106,  304,  305. 
Louisville  &  N.  R.  Co.  v.  United 

States  (174  Fed.  1021;  98  C.  C. 

A.  664),  356,  493,  495. 
Louisville  &  N.  Pt.  Co.  v.  United 

States  (186  Fed.  280;  108  C.  C.  A. 

320),  340,  358,  361,  362,  372,  494, 

495,  496,  497. 
Louisville  &  N.  R.  Co.  v.  Walker 

(162  Kv.   209;   172  S.   W.   517), 

63,  69,  98,  102,  125. 
Louisville  &  N.  R.  Co.  v.  Wene  (202 

Fed.  887;  121  C.  C.  A.  245),  254, 

2.55. 
Louisville  &  N.  R.  Co.  v.  Wilson 

(ISS  Fed.  417;  110  C.  C.  A.  217), 

497. 
Louisville  &  N.  R.  Co.  v.  Winkler 

(162  Ky.  843:  173  S.  W.  151),  253. 
Louisville   &   N.    R.   Co.    v.   Yar- 

borough  (60  Fla.  — ;  61  Fla.  307; 

54  So.  462),  148. 


TABLE    OF    CASES. 


[References  are  to  pages.] 


Louisville,  etc.,  R.  Co.  v.  Berry  (2 

Ind.  App.  427;  28  N.  E.  714),  235, 

259. 
Louisville,    etc.,    R.    Co.    v.    Collins 

(2  Duv.  114),  148. 
Louisville,  etc.,  R.  Co.  v.  Common- 
wealth (80  Ky.  143;   44  Am.  Rep. 

468),  148. 
Louisville,   etc.,   R.   Co.   v.   Coppage 

(Ky.)  (13  S.  W.  1086),  229. 
Louisville,  etc.,  R.  Co.  v.  Edmondson 

(128  Ga.  478;    57  S.  E.  877),  147. 
Louisville,    etc.,    R.    Co.    v.    Filbern 

(6  Bush.  674),  148. 
Louisville,  etc.,  R.  Co.  v.  Jones  (45 

Fla.  407;   50  Fla.  225;   39  So.  246, 

485),  218,  224,  226. 
Louisville,  etc.,  R.  Co.  v.  Louisville, 

etc.,  Co.  (Ky.)  (17  S.  W.  567),  218. 
Louisville,    etc.,    R.    Co.    v.    Merri- 

weather  (Ky.)  (12  S.  W.  935),  229. 
Louisville,  etc.,  R.  Co.  v.  Rush  (127 

Ind.  545;    26  N.  E.  1010),  241. 
Louisville,    etc.,    R.    Co.    v.    Sanders 

(86  Ky.  259;    5  S.  W.  563),  232. 
Louisville,  etc.,  R.  Co.  v.  Summers 

(125  Fed.  719),  302. 
Louisville,  etc.,  R.  Co.  v.  Thompson 

(107  Ind.  442;    8  N.  E.  IS;    9  N. 

E.  357),  218. 
Louisville,  etc.,  R.  Co.  v.  Thompson 

(113  Ga.  983;    39  S.  E.  483),  145. 
Louisville,  etc.,  R.  Co.  v.  Trammell 

(93  Ala.  350;   9  S.  870),  303. 
Louisville,  etc.,  R.  Co.  v.  Vancleave 

(23  Ky.  L.  479;  63  S.  W.  22),  355. 
Louisville,    etc.,    R.    Co.    v.    Walker 

(23  Ky.  L.  453;  63  S.  W.  20),  355. 
Lovier  v.   Central,  etc.,   R.   Co.   (71 

Ga.  222),  144. 
Low  V.  Rees  Printing  Co.   (41   Neb. 

127;    59  Pac.   362;    24  L.   R.  A. 

702),  601. 


Lucas  V.  New  York,  etc.,  R.  Co.  (21 

Barb.  245),  229. 
Lucas  V.  Peoria  &  E.  Ry.  Co.  (171 

111.  App.  1),  373,  376,  493. 
Luce  V.  Railroad  Co.   (67  Iowa,  75; 

24  N.  W.  600),  64. 
Ludd  V.  Wilkins  (118  Ga.  525;    45 

S.  E.  429),  145. 
Luken  v.  Lake  Shore  &  M.  S.  Ry.  Co. 

(154111.550;  248111.377;  94  N.  E. 

175;     140  Am.   St.  220;    21   Am. 

Cas.  82),  338,  340,  344,  356,  357, 

361,  399,  402,  414,  422,  426,  472. 
Lundeen  v.  Great  Northern  Ry.  Co. 

(Minn.)   (150  N.  W.  1088),  252. 
Lundin  v.   Kansas  Pac.   Ry.  Co.   (4 

Colo.  433),  218. 
Lynch  v.  Nurdin  (4  Eng.  C.  L.  422), 

148. 
Lyng  V.   Michigan    (135   U.   S.   161, 

166;    10  Sup.  Ct.  725;    34  L.  Ed. 

150,   reversing  74   Mich.   579;    42 

N.  W.  Rep.  139),  347,  387. 
Lyon   v.    Charleston   &   W.    C.    Ry. 

(77  S.  C.  328;    56  S.  E.  18),  461, 

471. 
Lyons   v.    Woodward    (49    Me.    29), 

217. 


M 


McAdoo  v.  Kansas  City  W.  Ry.  Co. 

(Mo.  App.)  (164  S.  W.  188),  42, 

54,  294,  296,  304. 
McAllister  v.  United  States  (141  U. 

S.  174,  184;  11  Sup.  Ct.  949;  35 

L.  Ed.  693),  284. 
McAuliffc  v.  New  York  C.  &  11.  R. 

H.  Co.  (150  N.  Y.  Sup.  512),  109, 

315. 
McAunick  v.  Mississippi,  etc.,  R. 

Co.  (20  Iowa,  338),  12. 
McClicsnoy  v.  Illinois  Cen.  R.  Co. 

(107  Fed.  85),  36,  287,  289,  295. 
McCIclhin  V.  Chipman  (164  U.  S. 

347),  584. 


TABLE    OF   CASES. 


[References  are  to  pages. 


McCool  V.  Smith  (1  Black.  459;    17 

L.  Ed.  218),  225. 
McCormick    v.    Market    Bank    (165 

U.  S.  538;    17  Sup.  Ct.  433;    41 

L.  Ed.  817,  affirming  162  111.  100; 

44  N.  E.  381),  413. 
McCoullough  V.  Chicago,  R.  I.  &  P. 

Ry.  Co.  (160  Iowa,  452;   142  N.  W. 

67),  240,  243,  244,  246,  247,  248, 

249,  250,  253,  287,  293,  303,  319. 
McCray  Case  (196  U.  S.  27),  577. 
McCutcheon  v.  Atlantic,  etc.,  R.  Co. 

(81  S.  C.  71;   61  S.  E.  1108),  355. 
IMcDaniels  v.  Royle,  etc.,  Co.   (110 

Mo.  App.  706;  85  S.  W.  679),  227. 
McDonald  v.  Pittsburg,  etc.,  R.  Co. 

(144  Ind.  459;   43  N.  E.  447),  227. 
McDonald  v.   Railway  Transfer  Co. 

(121  Minn.  273;    141  S.  W.  177), 

203. 
McDonald   v.   Southern   M.   R.   Co. 

(10  Ohio  St.  272),  227. 
McDonald   v.   Southern   R.   Co.    (71 

S.  C.  352;   51  S.  E.  138),  227. 
McDonnell  v.   Central   R.   Co.    (118 

Ga.  86,  195;    44  S.  E.  800,  840), 

147. 
McGarvey  v.   Detroit,  T.  &   I.  Ry. 

Co.   (83  Ohio  St.  273;    94  N.  E. 

424),  344,  405. 
McGarvey  v.  McGarvey  (163  Ky. 

242;  173  S.  W.  765),  223. 
McGovern  V.  Philadelphia  &R.  Ry. 

Co.  (200  U.  S.  389;  34  Sup.  Ct.  — 

reversing  209  Fed.  975  (C.  C.  A.) 

6  N.  C.  C.  — ),  224,  235,  293. 
McGuire  v.  Chicago,  B.  &  O.  Rv. 

Co.   (131  Iowa,  340;    108:  N.   W. 

902;33L.  R.  A.  (N.  S.)706;affirmed 

219  U.  S.  549;  31  Sup.  Ct.  259; 

55  L.  Ed.  328),  12,  23,  266,  491. 
Mcintosh  V.  St.  Louis  &  S.  F.  R. 

Co.  (182  Mo.  App.  288;  168  S.  W. 

821),  36,  294,  297,  298,  313,  314, 

324,  489. 


Mclver  v.  Ragan  (2  Wheat.  25,  29; 

4  L.  Ed.  175),  388. 
McKeigue  v.   City  of  Janesville  (68 

Wis.  50;    31  N.  W.  298),  235. 
McKering    v.    Pennsylvania    R.    Co. 

(65  N.  J.  L.  57;   46  Atl.  715),  273. 
McMahon  v.  City  of  New  York  (33 

N.   Y.   642),   223. 
McNamara  v.  Washington  Terminal 

Co.  (35  App.  D.  C.  230;  38  Wash. 

Law  Rep.  343),  22,  27,  491. 
McNamara  v.  Washington  Terminal 

Co.   (37  Wash.   D.  C.  384,  389), 

23,  72,   102. 
McNiel,  Ex  parte  (13  Wall.  236;    20 

L.  Ed.  624),  30,  589. 
McNiell   V.   Southern   Ry.   Co.    (202 

U.  S.  543;    26  Sup.  Ct.  722;    50 

L.  Ed.  1142),  56,  57. 
Mabel  Comeaux,  The  (24  Fed.  490), 

168. 
Macon,    etc.,    Ry.    Co.    v.   Anderson 

(121  Ga.  666;    49  S.  E.  791),  147. 
Macon,  etc.,  Ry.  Co.  v.  Barnes  (121 

Ga.  443;    49  S.  E.  282),  147. 
Macon,  etc.,  R.  Co.  v.  Davis  (28  Ga. 

Ill;    IS  Ga.  079),  134,  146. 
Macon,  etc.,  R.  Co.  v.  Denis  (18  Ga. 

684),   134. 
JMacon,  etc.,  Ry.  Co.  v.  Holmes  (103 

Ga.  655,  658;    30  S.  E.  563,  565), 

138,   142,   144. 
Macon,  etc.,  R.  Co.  v.  Johnson  (38 

Ga.  409,  431),  134,  142,  144. 
I  Macon,  etc.,  Ry.  Co.  v.  ]McLendon 

(119  Ga.  297;    46  S.  E.  106),  145. 
Macon,    etc.,    R.    Co.    v.    Winn    (26 

Ga.  250;    19  Ga.  440),   134,   144, 

146. 
Madison,   etc.,   R.   Co.   v.  Bacon   (6 

Ind.  205),  10,  218. 
Majestic,   The    (166   U.   S.   375;     17 

Sup.   Ct.   597;    41   L.   Ed.    1039), 

518. 


lii 


TABLE    OF    CASES. 


[References  are  to  pages. 


Malloy  V.  Northern  Pac.  R.  Co.  (151 

Fed.   1019),   266,   267. 
Malone   v.    Railway    Co.    (65    Iowa, 

417),  64. 
Malott   V.   Hood    (201    111.   202;     66 

N.  E.  247,  affirming  99  111.  360), 

397,  399,  414,  473. 
Malott  V.  Shimer  (153  Ind.  35;    54 

N.  E.  101),  219. 
Maney  v.  Chicago,  etc.,  R.  Co.   (49 

111.  App.   105),  273. 
Manitoba,  The  (122  U.  S.  97;  7  Sup. 

Ct.   1158;    90  L.  Ed.   1095),   168. 
Mansfield    v.    Richardson    (118    Ga. 

250;   45  S.  E.  269),  145. 
March  v.  Walker  (48  Tex.  375),  258. 
Maria    Martin,    The    (12    Wall.    31; 

20   L.   Ed.   251,   affirming   2   Biss. 

41;    Fed.  Cas.  9079),  168. 
Marianna  Flora,  The  (11  Wheat.  1; 

6  L.  Ed.  405,  affirming  3  Mason, 

116;  Fed.  Cas.  9080),   172. 
]Marino  v.  Lehmaier  (173  N.  Y.  530; 

66  N.  E.  572;    61  L.  R.  A.  811), 

540. 
Marsh   v.    South   Carolina,    etc.,    R. 

Co.  (56  Ga.  274),  14. 
Marshall  v.  Wabash  R.  Co.  (46  Fed. 

269),  227. 
Martin  v.  Atchison,  T.  &  S.  F.  Ry. 

Co.  (Kan.)  (145  Pac.  849),  96,  208. 
Martin  v.  Butte  (34  Mont.  281;    86 

Pac.  264),  302. 
Martin  v.  Hunter's  Lessee  (1  Wheat. 

304,  328-333;    4  L.  Ed.  97),  282, 

589. 
Martin  v.  Wallace  (40  Ga.  52),  218. 
Mary  Ida,  The  (20  Fed.  741),  108. 
Mary  Patten,  The  (2  La.  196),  169. 
Mason   v.   Richmond   &   D.   R.   Co. 

(Ill  N.  C.  482;   16  S.  E.  698),  407, 

470. 
Mason  v.  Steam  Tug  (3  Fed.  404), 

168. 


Matthews,  In  re  (122  Fed.  248,  251), 

585. 
Mattock    V.    Williamsville,    etc.,    R. 

Co.  (Mo.)  (95  S.  W.  849),  228. 
Matz  V.  Chicago  &  S.  R.  Co.  (88  Fed. 

770),  306. 
Max  Morris,  The  (137  U.  S.   1;    11 

Sup.  Ct.  29;   34  L.  Ed.  586,  affirm- 
ing 24   Fed.   860;    28   Fed.   881), 

167, 168, 170, 172. 
Mayor,  etc.,  v.  Dodd  (58  Ga.  238), 

144,  146. 
Mayor,   etc.,   v.  Third  Ave.   R.  Co. 

(117  N.  Y.  404,  666;    22  N.  E. 

755),  396. 
Meeks    v.    Atlanta,    etc.,    Ry.    Co. 

(122  Ga.  266;   50  S.  E.  99),  147. 
Meesel    v.    Lynn,    etc.,    R.    Co.    (8 

Allen,  234),   176. 
Melzner  v.   Northern   Pac.   Ry.   Co. 

(46    Mont.    162,    277;     127    Pac. 

766,  1002),  35,  36,  217,  222,  224, 

230,  301,  311,  317. 
Memphis,   etc.,    Co.   v.   Yager,   etc., 

Co.  (10  Fed.  395),  168. 
Merkle  v.  Bennington  Tp.  (58  Mich. 

156;    24  N.  W.  776),  235. 
Metz   V.   Chicago,   B.   &   Q.   R.   Co. 

(88  Neb.  459;  129  N.  W.  994),  23. 
Mexican    Cent.    R.    Co.    v.    Glover 

(107  Fed.  356;  46  C.  C.  A.  334),  6. 
Mexican  Cent.  R.  Co.  v.  Knox  (114 

Fed.  73;  52  C.  C.  A.  21),  6. 
Mexican    Cent.    R.    Co.    v.    Sprague 

(114  Fed.  544;  52  C.  C.  A.  318),  6. 
Michigan  Central  R.  Co.  v.  Schaffer 

(220  Fed.  809),  203,  210. 
Michigan  Central  R.  Co.  v.  Vreeland 

(227  U.  S.  59;    33  Sup.  Ct.   192; 

57  L.  Ed.  192,  417,  reversing  189 

Fed.  495),  5,  22,  35,  36,  201,  217, 

219,  224,  227,  230,  237,  239,  241, 

242,  244,  250,  26G,  26.1    293   320. 


TABLE    OF   CASES. 


iiii 


[References  are  to  pages. 


Michigan  Headling  &   Hoop  Co.   v. 

Wheeler    (141     Fed.    61;     72    C. 

C.  A.  71),  480. 
Mickelson    v.    Truesdale    (63    Minn. 

137;  65  N.  W.  260),  13. 
Midland  Valley  R.  Co.  v.  Le  Moyne 

(104  Ark.  327;  148  S.  W.  654),  217. 
Miller    v.    Illinois    Central    R.    Co. 

(168  Fed.  982),  287. 
Miller  v.  Kansas  City  W.  R.  Co. 

(180  Mo.   App.   501;   168  S.   W. 

336),  106. 
Miller  v.  Michigan  Central  R.  Co. 

(Mich.)  (152  N.  W.  235),  255,  291. 
Milwaukee  Ry.  Co.  v.  Kcllog  (94 

U.  S.  469),  853. 
Mims  V.  Atlantic  C.  L.  R.  Co.  (S. 

C.)  (85  S.  E.  372),  297. 
Minneapolis    &    St.    L.    Ry.    Co.    v. 

Herrick    (127   U.   S.   210;    8   Sup. 

Ct.  1176;   32  L.  Ed.  109,  affirming 

31   Minn.   11;    47  Am.   Rep.  771; 

16  N.  W.  413),  12,  17,  22. 
Minneapolis,  St.  L.  &  S.  M.  Ry.  Co. 

V.  Popplar  (237  U.  S.  — ;   35  Sup. 

Ct.  609;    59  L.  Ed.  — ,  affirming 

121   Minn.   413;    141   N.  W.   798; 

Ann.  Cas.  1915  D,  383),  325,  401, 

403,  465. 
Minnesota   Iron   Co.    v.    Kline    (199 

U.  S.  593;    26  Sup.  Ct.  159;    50 

L.  Ed.  322,  affirming  93  Minn.  63; 

100  N.  W.  681),  19,  65. 
Mires  v.  St.  Louis  &  S.  F.  Ry.  Co. 

(134   Mo.   App.   379;     114   S.   W. 

1052),  58,  355. 
Mississippi  R.   Co.   v.   Illinois  Cent. 

R.  Co.   (203  U.  S.  335,  343;    27 

Sup.  Ct.  90;   51  L  Ed.  209,  affirm- 
ing 70  C.  C.  A.  617;   138  Fed.  377), 

21,  572,  594. 

Missouri,   etc.,   Co.   v.   Brantley   (20 
■  Tex.    Civ.    App.    11;     62    S.    W. 

94),  274. 
Missouri,  etc.,  R.  Co.  v.  Blalock  (Tex. 

Civ.  App.)  (147  S.  W.  559),  105. 


Missouri,    etc.,    R.    Co.    v.    Freemat 

(Tex.  Civ.  App.)   (73  S.  W.  542), 

227. 
Missouri,    etc.,    R.    Co.    v.    Mackey 

(127  U.   S.   205;    32  L.   Ed.   107; 

8  Sup.  Ct.  1161,  affirming  33  Kan. 

298;    6  Pac.  291),   12,   17,   19,  21, 

65. 
Missouri,    etc.,    R.    Co.    v.    Neaves 

(Tex.  Civ.  App.)  (127  N.  W.  1090), 

295,  296. 
Missouri,    etc.,    R.    Co.    v.    Turner 

(Tex.  Civ.  App.)  (138  S.  W.  1126), 

36. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Bunkley 

(Tex.  Civ.  App.)  (153  S.  W.  937), 

96,  287,  292. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Denahy 

(Tex.)  (165  S.  W.  529),  73,  100,  101, 

107. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Evans 

(16  Tex.  Civ.  App.  68;    41  S.  W. 

80),  258. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Fesimire 

(Tex.  Civ.  App.)  (150  S.  W.  201), 

107. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Freeman 

(Tex.)  (168S.  V/.  69),209. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Haber 

(169  U.  S.  613;    18  Sup.  Ct.  488; 

42  L.  Ed.  878,  affirming  56  Kan. 

694;    44  Pac.  632),  509. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Haw- 
ley   (Tex.   Civ.  App.)    (123  S.  W. 

726),  296,  301. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Lenahan 

(39  Okla.  283;    135  Pac.  382,  507), 

35,  36,  214,  286,  293,  309,  311,  323. 
Missouri,   K.   &   T.   R.   Co.   v.   Me- 

daris     (GO     Kan.     151;      55     Pac. 

875),  19,  65. 
Missouri,  K.  &  T.  Ry.  Co.  v.  New 

Era    Milling    Co.    (80    Kan.    141; 

101  Pac.  1011),  59. 


liv 


TABLE    OF    CASES. 


[References  are  to  pages.] 


Missouri,  K.  &  T.  Ry.  Co.  v.  Rentz 

(Tex.  Civ.  App.)  (162  S.  W.  959), 

35,  102. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Sadler 

(Tex.  Civ.  App.)  (149  S.  W.  1188), 

22,  35,  36,  39. 
Missouri,  K.  &  T.  Ry.  Co.  v.  United 

States  (231  U.  S.  112;   34  Sup.  Ct. 

26;    58  L.  Ed.  — ),  522,  523,  528, 

529,  537,  539,  540,  541,  939,  952, 

953,  955. 
Missouri,  K.  &  T.  Ry.  Co.  v.  West 

(232  U.  S.  682;    34  Sup.  Ct.  471; 

58  L.  Ed.  — ;    38  Okla.  581;    134 

Pac.  655),  321,  322,  323. 
Missouri,  K.  &  T.  Ry.  Co.  v.  Wulf 

(57   U.   S.   355;     226  U.    S.   570; 

33  Sup.  Ct.  135;    57  L.  Ed.  274, 

affirming  192  Fed.  919;    113  C.  C. 

A.   665),   35,   214,   216,   232,   233, 

295,  296,  309,  320,  325. 
Missouri    Pac.    Ry.    Co.    v.    Barber 

(44  Kan.  612;    24  Pac.  969),  229. 
Missouri  Pac.  Ry.  Co.  v.  Brinkmeier 

(77  Kan.  14;  93  Pac.  621;  50  Am. 

&  Eng.  R.  Cas.  (N.  S.)  441),  280, 

340,  426,  439,  487,  490. 
Missouri  Pac.  Ry.  Co.  v.  Castle  (172 

Fed.  841;    97  C.  C.  A.   124),  23. 
Missouri  Pac.  Ry.  Co.  v.  Castle  (224 

U.  S.  541;    32  Sup.  Ct.  606;    56 

L.  Ed.  875),  36,  344. 
Missouri  Pac.  Ry.  Co.  v.  Fitzgerald 

(160  U.  S.  556;    40  L.  Ed.  336; 

16  Sup.  Ct.  389),  591. 
Missouri  Pac.  R.  Co.  v.  Kennet  (79 

Kan.  232;    99  Pac.  263),  392. 
Missouri    Pac.    Ry.   Co.    v.    Larabee 

(211  U.  S.  612;  -20  Sup.  Ct.  214; 

53  L.  Ed.  352),  343. 
Mi8.souri    Pac.    R.    Co.    v.    Mackey 

(33  Kan.  298;    6  Pac.  291),  12. 


Missouri  Pac.  Ry.  Co.  v.  United  States 
(211  Fed.  893;  127  C.  C.  A.  123), 
516,  531,  533. 

Missouri  Ry.  Co.  v.  Elliott  (102  Fed. 
96),  854. 

Mitchell  V.  Crassweller  (13  C.  B. 
23.5),  111. 

Mix  V.  Hamburg,  etc.,  Co.  (85  N. 
Y.  App.  Div.  475;  83  N.  Y.  St. 
322),  246. 

M.  J.  Cummings,  The  (18  Fed.  178), 
168. 

Mobile  County  v.  Kimball  (102  U.  S. 
691;  26  L.  Ed.  238,  affirming  3 
Woods,  555;  Fed.  Cas.  7774),  30. 

Mobile,  J.  &  K.  C.  R.  Co.  v.  Brom- 
berg  (141  Ala.  258;  37  So.  395), 
59,  280,  365,  369,  397,  399,  470, 
472,  477,  478,  487,  489,  491. 

Mobile,  J.  &  K.  C.  R.  Co.  v.  Turnip- 
seed  (219  U.  S.  35;  31  Sup.  Ct. 
136;  55  L.  Ed.  78,  affirming  91 
Miss.  273;  46  So.  360;  124  Am. 
St.  679),  14. 

Moen  V.  Moen  (16  S.  D.  214;  92 
N.  W.  1.3),  225. 

Moffett  V.  Baltimore  &  O.  R.  Co. 
(220  Fed.  3D),  222,  240,  261,  302, 
303,  317. 

Moliter  v.  Wabash  R.  Co.  (180  Mo. 
App.  84;  164  S.  W.  188;  168  S. 
W.  250),  36,  296,  309,  310. 

Monarch,  The  (1  Wm.  Rob.  21),  167. 

Mondon  v.  N.  Y.,  N.  H.  &  H.  R.  Co. 
(223  U.  S.  1;  32  Sup.  Ct.  169;  56 
L.  Ed.  327;  38  L.  R.  A.  (N.  S.) 
44;  1  U.  C.  C.  875,  reversing  82 
Conn.  352;  73  Atl.  754),  22,  23, 
35,  203,  208,  280,  281,  286,  576. 

Monicas  v.  Baltimore  &  O.  R.  Co. 
(40  App.  D.  C.  391),  312. 

Montgomery  v.  Carolina  &  N.  W. 
R.  Co.  (163  N.  C.  597;  80  S.  E. 
S3),  406,  468. 


TABLE    OF   CASES. 


Iv 


[References  are  to  pages.] 


Montgomery   v.   Southern   Pac.    Co. 

(64  Ore.  597;    131   Pac.  507),  42, 

80,  94,  95,  96,  287,  315. 
Monticello,  The  (15  Fed.  474),   168. 
Moody   V.   Pacific   R.   Co.    (68  Mo. 

470),  232. 
Moody  V.  Peterson  (11  111.  App.  180), 

160,  161,  166. 
Moore   v.   American    Transportation 

Co.   (24  How.   1),  907. 
Moore  v.  C.  L.  King  IMfg.  Co.  (124 

Ga.  576;   53  S.  E.  107),  145. 
Moore  v.  Dublin  Cotton  Mills  (127 

Ga.  609;    56  S.  E.  839),  146. 
Moore    v.    Gainsville    Midland    Ry. 

Co.    (9  Ga.  App.  496;    71   S.   E. 

808),  140. 
Moran  v.   HoUings   (125   Mass.   93), 

261. 
Morgan  v.  Bridge  Co.   (5  Dill.  96), 

181. 
Morgan  v.  Louisiana  (118  U.  S.  455; 

6  Sup.  Ct.  1114;    30  L.  Ed.  237, 

afiirming   36    La.    Ann.    666),   30. 
Morier  v.  St.  Paul,  M.  &  M.  R.  Co. 

(31   Minn.  351;    17  N.   W.  952), 

110. 
Morris  v.  Duluth,  S.  S.  &  A.  Ry.  Co. 

(108  Fed.  747;    47  C.  C.  A.  661), 

478,  479. 
Morris  v.  St.  Louis  &  S.  W.  R.  Co. 

(Tex.  Civ.  App.)  (158  S.  W.  1055), 

403,  472. 
Morrison  v.  Baird  (10  R.  638),  601. 
Morrison  v.  Baltimore  &  O.  Ry.  Co- 

(40  App.  D.  C.  391),  231. 
Moses    Taylor,    The    (4    Wall.    428; 

71  U.  S.  401),  588,  589. 
Mottley   V.   Louisville,   etc.,    R.   Co. 

(150  Fed.  406),  431. 
Moyse  v.  Northern  Pacific  Ry.  Co. 

(41   Mont.   272;     108   Pac.    1062), 


Mt.  Adams  Ry.  Co.  v.  Lowery  (74 

Fed.  463),  854. 
Mulcahey  v.  Washburn  Car  Co.  (145 

Mass.  281;    14  N.  E.  106;    1  Am. 

St.  458),  261. 
Murphy  v.  New  York,  etc.,  R.  Co. 

(30  Conn.   184),  219. 
Murray  v.  Chicago  &  N.  W.  Ry.  Co. 

(02  Fed.  24),  278,  591. 
Murray  v.  So.  Car.  R.  Co.  (1  McMuI. 

385;   36  Am.  Dec.  268),  9. 
Murray   v.   Usher    (117   N.   Y.   542; 

23  N.  E.  564;    46  Hun,  404),  274. 
Mutual   L.   Ins.   Co.   v.   Prewitt   (31 

Ky.    1319;     105   S.   W.   463),   201. 
Myers    v.    Norfolk    &    W.    Ry.    Co. 

(162  N.   C.   343;    78  S.   E.   280), 

68,  92,  103,  107. 
Myrtle  v.  Nevada,  C.  &  O.  Ry.  Co. 

(137  Fed.  193),  413,  489. 
Mystic,  The  (44  Fed.  399),  168. 


Narramore   v.    Cleveland,    C.    C.    & 

St.  L.  Ry.  Co.  (96  Fed.  298,  300), 

123,  853. 
Nashville,    C.    &   St.    L.    R.    Co.    v. 

Banks  (156  Ky.  609;    161  S.  W. 

554;    216  Fed.  554),  95,  237,  255, 

257. 
Nashville,   C.   &   St.   L.   Ry.   Co.   v. 

Henry  (158  Ky.  88;  164  S.  W.  310) 

208,  237,  255,  257,  264,  406,  412, 

426,  467,  469,  470,  473,  477,  484. 
Nashville,   etc.,   R.   Co.   v.   Alabama 

(128   U.    S.    96;     9   Sup.    Ct.   28; 

32   L.   Ed.   352,   affirming  83  Ala. 

71;   3  So.  702),  33,  38. 
Nashville,    etc.,    R.    Co.    v.    Carroll 

(6  Heisk.  347),  147,  175. 
Nashville,  etc.,  R.  Co.  v.  Prince  (2 

Heisk.  (Tenn.)  580),  219. 


Ivi 


TABLE    OF   CASES. 


[References  are  to  pages.] 


Nashville,    etc.,    R.    Co.    v.    Wheless 
(10  Lea,  741;    43  Am.  Rep.  317), 
147,  175. 
Natchez,  etc.,   R.   Co.  v.   Cook   (63 

Miss.  38),  217. 
Nathan  Hale,  The  (48  Fed.  700),  168. 
Naylor    v.    Pittsburg,    etc.,    R.    Co. 

(4  Ohio  C.  C.  (N.  S.)  437),  223. 
Neal  V.   Delaware   (103  U.   S.   370; 

26  L.  Ed.  567),  591. 
Neal  V.   St.   Louis,   I.   M.  &   S.   R. 

Co.  (71  Ark.  445;    78  S.  W.  220), 

423,  424,  488. 
Neal    V.    Wilmington,    etc.,    Co.    (3 

Penn.  (Del.)  467),  245. 
Neil  V.  Idaho  &  W.  N.  R.  Co.  (23 

Idaho,  74;    125  Pac.  331),  91,  97, 

102,  133,  198,  203,  252,  255,  292. 
Neilson  v.  Brown  (13  R.  I.  651),  218. 
Nelson   v.   Galveston,   etc.,   Ry.   Co. 

(78   Tex.    621;     14   S.    W.    1021), 

228. 
Nelson    v.    Northern    Pac.    Ry.    Co- 

(Mont.)  (148  Pac.  238),  255. 
New    Jersey    Exp.    Co.    v.    Nichols 

(33  N.  J.  L.  435),  132. 
New   Orleans   v.   Benjamin    (153   U. 

S.   411;    38  L.   Ed.  764;    14  Sup. 

Ct.  905),  591. 
New    Orleans    Cotton    Exchange    v. 

Cincinnati,   etc.,   R.  Co.   (2  Inter- 
state Cora.  289),  58,  355. 
Newport    News,    etc.,     R.     Co.     v. 

Dentzel  (91  Ky.  42;  14  S.  W.  958), 

261. 
Newport  News  &  N.  V.  Co.  v.  United 

States  (61  Fed.  488;    9  C.  C.  A. 

579),  518. 
New  York,  The  (175  U.  S.  187;  20 

Sup.  Ct.  67;   44  L.  Ed.  126,  revers- 
ing 27  C.  C.  A.  154;   54  U.  S.  App. 

248;   82  Fed.  SI 9),  168. 


New  York  C.  R.  R.  Co.  v.  Carr  (238 

U.  S.  260),  98. 
New  York  C.  &  H.  R.  R.  Co.  v. 

Carr  (35  Sup.  Ct.  780,  affirming 

157  N.  Y.  App.  Div.  941;  142  N. 

Y.  Supp.  1111),  72,  92,  102. 
New  York  C.  &  H.  R.  R.  Co.  v. 

United  States  (165  Fed.  833;  91 

C.  C.  A.  519),  494. 
New  York,  C.  &  St.  L.  R.  Co.  v. 

Niebel   (214  Fed.   952),   242,   243, 

244,  249,  255,  256,  260,  319,  326. 
New  York,  N.  H.  &  H.  R.  R.  Co.  v. 

Vizvori  (210  Fed.  118;    126  C.  C. 

A.  632),  203,  211,  294,  311. 
New  York,  etc.,  R.  Co.  v.  New  York 

(165  U.  S.  628;    17  Sup.  Ct.  418; 

41  L.  Ed.  853,  affirming  142  N.  Y. 

646;   37  N.  E.  568),  33. 
Nicholas    v.    Chesapeake,    etc.,    Ry. 

Co.    (127    Ky.    310;     105    S.    W. 

481;    17  L.  R.  A.  (N.  S.)  861;    32 

Ky.  270),  280,  287,  487. 
Nichols  V.  Chesapeake  &  O.  Ry.  Co. 

(195  Fed.  913,  115  C.  C.  A.  601), 

231,  287,  406,  421,  471,  473,  477, 

484,  491,  497. 
Nichols    V.    Tanner    (117    Ga.    489; 

43  S.  E.  489),  147. 
Niles  V.  Central  Vt.  Ry.  Co.  (87  Vt. 

356;     89    Atl.    629),    35,    36,    39, 

297. 
Nix    V.    Southern    Ry.    Co.    (4    Ga. 

App.  331;    61  S.  E.  292),  147. 
Nordgord  v.  Maysville  &  N.  R.  Co. 

(218  Fed.  737,  affirming  211  Fed. 

721),  49. 
Norfolk    &    W.    Ry.    Co.    v.    Dixie 

(111  Va.  813;   69  S.  E.  1106),  491. 
Norfolk   &    W.    R.    Co.    v.    Earnest 

(229  U.  S.  114;    33  Sup.  Ct.  654; 

57  L.    Ed.  564,    651,    785,   1096), 

253,  254,  256,  318,  320,  337. 
Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg 

(179  Fed.  551;    95  C.  C.  A.  637), 

40(),  426,  472,  479,  491,  497. 


TABLE    OF    CASES. 


Ivii 


[References  are  to  pages.] 


Norfolk  &  W.   R.   Co.   v.   Hazelrigg 

(184  Fed.  828;    107  C.  C.  A.  66), 

296,  406,  478,  480. 
Norfolk  &  W.  Ry.  Co.  v.  Holbrook 

(U.  S.)   (35  Sup.  Ct.  143;    59  L. 

Ed.  — ,  reversing  215  Fed.  687),  78, 

98,  220,  242,  243,  244,  245,  261. 
Norfolk  &   W.    Ry.   Co.   v.   Stevens 

(97  Va.  631;    34  S.  E.  525;    46  L. 

R.  A.  367),  259. 
Norfolk  &  W.  R.  Co.  v.  United  States 

(177  Fed.  623;    101  C.  C.  A.  249), 

354,  356,  361,  372,  397,  402,  403, 

405,  406,  408,  414,  421,  426,  495, 

496,  886. 
Norfolk   &   W.    Ry.    Co.    v.    United 

States  (191  Fed.  302;   101  C.  C.  A. 

249;    112  C.  C.  A.  46),  404,  421, 

422,  495,  496,  497. 
Norfolk   &   W.    Ry.    Co.    v.    United 

States  (Appendix  G),  877. 
Norfolk,   etc.,    Ry.    Co.   v.    Pennsyl- 
vania (136  U.  S.  114,  115,  118,  120; 

10  Sup.  Ct.  958;    34  L.  Ed.  394, 

reversing  114  Pa.  256;    6  Atl.  45), 

58,  387. 
Norfolk,    etc.,    Ry.    Co.    v.    Perrow 

(101  Va.  345;    43  S.  E.  614),  147. 
Norfolk  Southern  R.  Co.  v.  Friebee 

(35    Sup.    Ct.    781,    affirming    167 

N.   C.   290;    83   S.   E.   360;     first 

appeal,  163  N.  C.  351;  79  S.  E.  685; 

52  L.  R.  A.  (N.  S.)  1114),  256,  264, 

293. 
North   Carolina   R.   Co.   v.   Zackary 

(232  U.  S.  248;    34  Sup.  Ct.  305; 

58  L.  Ed.  591,  reversing  156  N.  C. 

496;   72  S.  E.  858),  35,  42,  50,  59, 

60,  69,  94,  240,  310,  319,  321,  322, 

324,  350,  357,  400,  428. 
North  Chicago,  etc.,  R.  Co.  v.  Monka 

(4  111.  App.  664),  160. 
Northern   Bank   v.   Porter  Tp.    (110 

U.  S.  608),  812. 


Northern  Pac.  R.  Co.  v.  Ellison  (3 

Wash.  225;    28  Pac.  233),   229. 
Northern  Pac.  R.  Co.  v.  Maerkl  (198 

Fed.  1;    117  C.  C.  A.  237),  70,  72, 

76,   100,   101,  209,   220,  260,  261, 

262,  264,  473. 
Northern    Pac.    Ry.    Co.    v.    Slaght 

(205  U.  S.  122;    27  Sup.  Ct.  442; 

51  L.  Ed.  378),  306. 
Northern  Pac.  Ry.  Co.  v.  State  (222 

U.  S.  370;    32  Sup.  Ct.   160;    56 

L.    Ed.    237;     Appendix    G),    337, 

349,  510,  525,  932. 
Northern    Pac.    Ry.    Co.    v.    United 

States  (213  Fed.  577),  526. 
Northern  Pacific  Ry.  Co.  v.  United 

States    (220   Fed.    108),   528,   529. 
Northern  Queen,  The  (117  Fed.  906), 

218. 
North  Pennsylvania  R.  Co.  v.  Heile- 

man  (49  Pa.  St.  60),  176. 
North  Star,   The   (106  U.  S.   17;    1 

Sup.   Ct.   41,   affirming  8  Blatchf. 

209;    Fed.   Cas.    10331),    168. 
Norton   v.    Erie    R.    Co.    (163   App. 

Div.  468;    148  N.  Y.  Supp.  771), 

35,  39,  106,  250. 
Nutt  V.  Knut  (200  U.  S.  12;  26  Sup. 

Ct.  216;    50  L.  Ed.  348,  affirming 

83  Miss.  365;  35  So.  686;   102  Am. 

St.  452;   84  Miss.  465;   36  So.  689, 

reversing    84    INIiss.    465;     36    So. 

689),  413. 


Oberlin  v.  Oregon-W.  R.  &  N.  Co. 
(Ore.)  (142  Pac.  554),  98,  311. 

O'Brien  v.  Boston,  etc.,  R.  Co.  (138 
Mass.  387;  52  Am.  Rep.  279),  104. 

O'Brien  v.  Chicago  &  N.  W.  Ry. 
(116  Fed.  502),  17,  568. 

O'Brien  v.  Star  Line  Limited  (1 
•  Butterworth's  Workmen's  Com- 
pensation Cases,  177,  181),  110. 

O'Connoll  V.  Leary  (145  Mass.  311), 
810. 


Iviii 


TABLE    OF    CASES. 


[References  are  to  pages. 


O'Donnel   v.   Allegheny   R.   Co.    (59 

Pa.   St.  239;    98  Am.  Dec.  336), 

104. 
Ohio,  etc.,  R.  Co.  v.  Eaves  (42  III. 

2S8),  160. 
Ohio,  etc.,  R.  Co.  v.  Porter  (92  111. 

437),  155. 
Ohio,  etc.,   R.  Co.   v.   Shonefelt   (47 

111.  497),  154,  161,  163. 
Ohio,  etc.,  R.  Co.  v.  Tindall  (13  Ind. 

366),  218. 
Oldfield  V.  New  York,  etc.,  R.  Co. 

(14  N.  Y.  310),  223. 
Oliver  v.  Houghton  Co.  St.  Ry.  Co- 

(134  Mich.  367;    96  N.  W.  434; 

104   Am.    St.    607;     3   Ann.    Cas. 

53),    261. 
Oliver  v.  Northern  Pac.  Ry.  Co.  (196 

Fed.  432),  34,  35,  104,  127,  216,  266, 

315. 
Olsen  V.  Nixon  (61  N.  J.  L.  671;   40 

Atl.    694;     4    Am.    &    Eng.    Neg. 

Cases,  515),  11. 
Olson  V.   Flavel   (34  Fed.  477),   168. 
Olympia,  The  (61  Fed.  120;   9  C.  C- 

A.  393),  519. 
Omaha    St.    Ry.    Co.    v.    Interstate 

Commerce  Commission  (230  U.  S. 

324;    33  Sup.  Ct.  890;    57  L.  Ed. 

1501;    46  L.  R.  A.   (N.  S.)  385), 

54. 
Opsahl    V.    Northern    Pac.    Ry.    Co. 

(78    Wash.    197;     13S    Pac.    681), 

201,  208. 
Oratava,  The  (5  Mon.  L.  Mag.  45, 

362),  167. 
Oregon-Washington   R.   &   Nav.   Co. 

v.   United   States   (222   Fed.   887), 

5,  541. 
Oregon-Washington    R.   &   Nav.   C6. 

v.   United   States   (223   Fed.   596), 

538. 


Osborn  v.  Gillett  (L.  R.  8  Exch.  88; 

42  L.  J.  Exch.  53;  28  L.  T.  (N.  S.) 

197;   21  W.  R.  409),  217. 
Osborne  v.  Cincinnati,  N.   0.  &  T. 

P.  Ry.  Co.  (158  Ky.  176;    164  S. 

W.  818),  517,  522,  528,  538. 
Osborne  v.   Florida   (164  U.  S.  650, 

655;    17  Sup.  Ct.  214;    41  L.  Ed. 

586,  affirming  33  Fla.   162;    25  L. 

R.  A.   120;    4  Interst.   Com.  731; 

14  So.  588;    39  Am.  St.  99),  363, 

387. 
Otos  V.  Great  Northern  Ry.  Co. 

(Minn.)  (150  N.  W.  922),  59. 
Oulighan  v.  Butler  (189  Mass.  287; 

75  N.  E.  726),  302. 
Oyster  v.  Burlington,  etc.,  Co.  (65 

Neb.  719;  91  N.  W.  699;  59  L. 

R.  A.  291),  274. 


Pacific   Coast   R.    Co.   v.    United 

States  (173  Fed.  448),  334,  340, 

349,  350,  358,  3S0. 
Pacific  R.  Co.  v.  Maguire  (20  Wall. 

36),  584. 
Pacific  Ry.  Co.  v.  Castle  (172  Fed. 

841),  344. 
Packet  Co.  v.  Catlettsburg  (105  U. 

S.  559;  26  L.  Ed.  1),  30. 
Packet  Co.  V.  McCue  (17  Wall.  508; 

21  L.  Ed.  705),  89. 
Padgett  V.  Seaboard  Air  Line  Ry. 

Co.  (98  S.  C.  244;  83  S.  E.  633), 

107,  111. 
Pankey  v.  Atchison,    T.    &   S.    F. 

Ry.  Co.  (Mo.  App.)  (168  S.  W. 

274),  287,  292. 
Parker  v.  Atlantic  City  R.  Co.  (N. 

J.  L.)  (93  Atl.  574),  203,  208. 
Parker  v.  Crowcll,   etc.,   Co.    (115 

La.  463;  39  So.  445),  249. 
Parnielee  v.  Farro  (22  111.  467),  161. 
Parsons  v.  Chicago  &  N.  W.  Ry. 

Co.   (167  U.  S.  447;  17  Sup.  Ct. 

8S7;  42  L.  Ed.  231),  58. 
Parson.s    v.    Delaware    <t    H.    Co. 

(153  N.  V.  Supp.  179),  106. 


TABLE    OF   CASES. 


lix 


[References  are  to  pages.] 


Partee    v.    St.    Louis,    etc.,    R.    Co. 

(204  Fed.  970),  230. 
Passaic,  The  (190  Fed.  644),  35,  37, 

43,    93. 
Passenger  Cases,  The  (7  How.  283), 

31. 
Patry  v.  Chicago  &  W.  I.  Ry.  Co. 

(265  111.  310;    106  N.  E.  843),  68. 
Patten    v.    Faithorn    (152    111.    App. 

426),  361,  365. 
Patterson   v.    Pittsburg   &   Connells- 

ville  R.  R.  Co.  (76  Pa.  St.  389), 

475. 
Patton  V.  Cincinnati,  N.  0.  &  T.  P. 

Ry.  (208  Fed.  29),  287. 
Paulkey  v.  Atchison,  T.  &  S.  F.  Ry. 

Co.   (Mo.)   (168  S.  W.  274),  255. 
Pawnee,  The  (205  Fed.  333),  43. 
Payne  v.  New  York,  S.  &  W.  R.  Co. 

(201    N.    Y.    436;     95   N.    E.    79, 

modifying     141     App.     Div.     833; 

125  N.   Y.   Supp.   1011.     See   127 

N.  Y.  Supp.   1135),  304. 
Pecos  &  N.  T.  Ry.  Co.  v.  Rosenbloom 

(Tex  Civ.  App.)  (141  S.  W.  175), 

106. 
Peden  v.  American  Bridge  Co.   (120 

Fed.  523),  302. 
Pedersen  v.   Delaware,   L.  &  W.   R. 

Co.  (229  U.  S.  146;    33  Sup.  Ct. 

648;    57  L.  Ed.  1125;    3  U.  C.  C. 

779,  reversing   199  Fed.  537;    117 

C.   C.   A.   33,   which   affirmed   184 

Fed.  737),  69,  70,  71,  72,  73,  74,  76, 

82,  83,  96,  98,  100,  101,  116,  127, 

320. 
Peek    V.    Boston    &    Maine    R.    Co. 

(223  Fed.  448),  36,  287,  297. 
Peers  v.  Nevada,  etc.,  Co.  (119  Fed. 

400),  218,  302. 
Peery    v.    Illinois    Central    R.    Co. 

(123  Minn.  264;    143  N.  W.  724), 

58,  102. 
Pegasus,  The  (19  Fed.  46),  168. 


Pelin  V.  New  York  Central  R.  Co. 

(92  App.  Div.  71;  92  N.  Y.  Hupp. 

468;   affirmed,    without   opinion, 

188  N.  Y.  565;  91  N.  E.  1171), 

540. 
Pelton  v.  Illinois  C.  R.  Co.  (Iowa) 

(156  N.  W.  236),  311. 
Pennell  v.  Philadelphia  &  R.  Ry. 

Co.  (231  U.  S.  675;  34  Sup.  Ct. 

220;  58  L.  Ed.  430,  affirming  203 

Fed.  681;  122  C.  C.  A.  77),  330, 

397,  404. 

Pennsylvania      v.      Wheeling,      etc., 

Bridge  Co.   (18  How.  421;    15  L. 

Ed.  435),  30,  573,  595. 
Pennsylvania  Co.  v.  Cole  (214  Fed. 

948),  255,  256,  292. 
Pennsylvania     Coal     Co.     v.     Kelly 

(156  111.  9;   40  N.  E.  938),  134. 
Pennsylvania,  etc.,  R.  Co.  v.  Meyers 

(136  Ind.  242;   36  N.  E.  32),  218. 
Pennsylvania    R.    Co.    v.    Goodman 

(62  Pa.  329),  241. 
Pennsylvania   R.   Co.   v.   Goughnour 

(208  Fed.  961;    126  C.  C.  A.  39), 

210,  255,  312. 
Pennsylvania    Ry.    Co.    v.    Knight 

(192  U.  S.  21),  56. 
Pennsylvania   R.   Co.   v.  Knox   (218 

Fed.  748),  52. 
Pennsylvania    R.    Co.    v.    Long    (94 

Iiid.  250),  235,  259. 
Pennsylvania  R.  Co.  v.  Righter  (42 

N.  J.  L.  180),  132. 
Pennsylvania  R.  Co.  v.  Sheely  (221 

Fed.  901),  95,  253,  254. 
Penny  v.  New  Orleans,  Great  North- 
ern R.  Co.  (135  La.  962;    66  So. 

313),  35,  39,  214,  311. 
Pensacola  Tel.  Co.  v.  Western  Union 

Tel.  Co.  (96  U.  S.  1,  8;   24  L.  Ed. 

708,     affirming     2     Woods,     643: 

Fed.  Cas.  10960),  32,  57,  387. 
People  V.  Briggs  (47  Hun,  266),  810. 
People  V.  Briggs  (114  N.  Y.  56;    20 

N.  E.  820),  500. 


Ix 


TABLE    OF    CASES. 


[References  are  to  pages.] 


People  V.  Erie  R.  Co.   (198  N.  Y. 

369;    91  N.  E.  849;    29  L.  R.  A. 

(N.  S.)   240,  reversing  135  N.  Y. 

App.  Div.  767;    119  N.  Y.  Supp. 

873),  510,  540. 
People   V.   Welch    (141    N.    Y.    273; 

36  N.  E.  328;    24  L.  R.  A.  117; 

38  Am.  St.  793),  280. 
Peoria   Bridge,    etc.,   v.   Loomie    (20 

111.  236),  163. 
Peoria,   etc.,   Ry.   Co.  v.   Miller   (11 

111.  App.  375),  161. 
Perham    v.    Portland    Electric    Co. 

(33  Ore.  458;    53  Pac.  14;    40  L. 

R.  A.  799;    72  Am.  St.  730),  244. 
Perigo  V.  Chicago,  etc.,  R.  Co.   (55 

Iowa,   326;    7   N.   W.    621),    235. 
Petersfield    v.    The    Judith    (Abbott 

on  Shipping,  231),  167. 
Peterson  v.   Delaware,   L.   &  W.   R. 

Co.   (229  U.  S.  140;    33  Sup.  Ct. 

648;    57  L.  Ed.  1125),  51. 
Pfeiffer  v.  Oregon-W.  R.  &  N.  Co. 

(Ore.)  (144  Pac.  762),  180. 
Philadelphia  &  R.  Ry .  Co.  v.  United 

States  (191  Fed.  1;  111  C.  C.  A. 

661),  352,  376,  399,  422,  468. 
Philadelphia,  B.  &  W.  R.  Co.  v. 

Schubert  (224  U.  S.  603;  32  Sup. 

Ct.  589;  56  L.  Ed.  911,  affirming 

36  App.  D.  C.  565),  22,  266,  267. 
Philadelphia,  B.  &  W.  R.  Co.  v. 

Tucker   (35  App.   D.  C.   123),  27, 

91,   198. 
Philadelphia,  etc.,  R.  Co.  v.  Winkler 

(4  Penn.   (Del.)  387;    56  Atl.   112; 

affirmed    4    Penn.    (Del.)    80;     53 

Atl.  90),  334,  397,  401,  403,  404, 

412. 
Pierce   v.   Atlanta  Cotton   Mills   (79 

Ga.  782;    4  S.  E.  381),   143. 
Piersen  v.  N.  Y.  S.  &  W.  R.  Co.  (S3 

N.   .J.   L.   601;    85  Atl.   233),   69, 

83,  09,  105. 
Pinson    v.    Southern    Ry.    Co.     (85 

S.  C.  355;    67  S.  E.  404),  459. 


Pisane  v.  Shanley  (66  N.  J.  L.  1; 

48  Atl.  618),  274. 
Pittsburg,  C.  C.  &  St.  L.  R.  Co. 

V.  Farmers'  T.  &  S.  Co.  (Ind.) 

(108  N.  E.  108),  94,  208,  292. 
Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v. 

Glenn  (219  Fed.  148),  84,  316,  319. 
Pittsburg,  C.  C.  &  St.  L.  R.  Co.  v. 

Naylor  (73  Ohio  St.  115;  76  N.  E. 

505),  223. 
Pittsburg,  C.  C.  &  St.  L.  Ry.  Co.  v. 

State  (87  N.  E.  1034),  338. 
Pittsburg,  etc.,  R.  Co.  v.  Collins 

(168  Ind.  467;  80  N.  E.  415),  13. 
Pittsburg,  etc.,  R.  Co.  v.  Cox  (55 

Ohio  St.  497;    45  N.  E.  641),  35 

L.  R.  A.  507),  266. 
Pittsburg,  etc.,  R.  Co.  v.  Gipe  (160 

Ind.  360;    65  N.  E.  1034),  274. 
Pittsburg,  etc.,  R.  Co.  v.  Hosea  (152 

Ind.    412;     53    N.    E.    419),    218, 

274,  491. 
Pittsburg,   etc.,   R.   Co.   v.   Kinmare 

(203  111.  388;    67  N.  E.  826),  248. 
Pittsburg,   etc.,   R.   Co.   v.   Knutson 

(09  111.  103),  164. 
Pittsburg,  etc.,  R.  Co.  v.  Lightheiser 

(163  Ind.  247;  71  N.  E.  218,  660), 

15. 
Pittsburg,  etc.,  R.  Co.  v.  Lightheiser 

(168  Ind.  438;  78  N.  E.  1033),  12, 

15,  66. 
Pittsburg,    etc.,   R.   Co.   v.   Mitchell 

(175  Ind.  196;    91  N.  E.  735;    93 

N.  E.  996),  287. 
Pittsburg,  etc.,  R.  Co.  v.  Montgom- 
ery (152  Ind.  1;   45  N.  E.  .582;  49 

N.  E.  482;    69  L.  R.  A.  875;    71 

Am.  St.  30),  12,  17,  491. 
Pittsburg,    etc.,    R.    Co.    v.    Moore 

(152  Ind.  345;    53  N.  E.  290;    44 

L.  R.  A.  638),  266,  274. 
Pittsburg,  etc.,  R.  Co.  v.  Ross  (169 

Ind.  3;   SO  N.  E.  845),  12,  67. 
Pittsburg,  etc.,  Ry.  Co.  v.  Shannon 

(11  III.  App.  222),  160.  166. 


TABLE    OF    CASES. 


Ixi 


[References  are  to  pages. 


Plumley   v.    Massachusetts    (155    U. 

S.  461),  812. 
Plummer  v.  Northern  Pac.  Ry.  Co. 

(152  Fed.  206),  24,  334,  339,  472. 
Popplar    V.    Minneapolis,    St.    P.    & 

S.  S.  M.  Ry.  Co.  (121  Minn.  413; 

141    N.   W.   798),   362,    406,   410, 

477,  484,  498. 
Porter  v.  Ocean  S.  S.  Co.   (113  Ga. 

1007;   39  S.  E.  470),  145. 
Potter  V.  Baltimore  &  O.  R.  Co.  (37 

Wash.  Law  Rep.  466),  22,  271. 
Potter  V.  Chicago,  etc.,  R.  Co.   (46 

Iowa,  399),  17. 
Powell   V.   Freeman    (105   Tex.   317; 

148  S.  W.  290),  96. 
Prater  v.   Tennessee,   etc.,   Co.    (105 

Tenn.  496;    58  S.  W.   1068),  274. 
Prather  v.   Richmond,   etc.,   R.   Co. 

(80  Ga.  427;   9  S.  E.  530;    12  Am. 

St.  263),  142. 
Price  V.  Railroad  Co.  (33  S.  C.  556; 

12  S.  E.  413),  274. 
Price  V.  Richmond,  etc.,  R.  Co.  (38 

S.  C.  199;    17  S.  E.  732),  274. 
Priestly  v.  Fowler  (3  M.  &  W.   1), 

8,  10. 
Prigg  V.  Pennsylvania  (16  Pet.  536, 

615,  620,  621;    10  L.  Ed.   1060), 

284,  286. 
Proctor    &    Lohman    v.    People    (24 

111.  App.  599),  500. 
Providence,   The    (98   Fed.    133;    38 

C.  C.  A.  670),  168. 
Provident,  etc.,  v.  Carter  (2  111.  App. 

34),   161. 
Pym    V.    Great,    etc.,    Ry.    Co.     (2 

B.  &  S.  759),  218. 


Queen  v.  Fihon  (24  Can.  S.  C.  482, 
affirming    4    Can.    Exch.    134),    6. 

Queen  v.  Grenier  (30  Can.  S.  C. 
42),  6. 


Quin  v.  Moore  (15  N.  Y.  432),  223. 
Quincy  v.  Barker  (81  111.  300),  154. 
Quincy   Coal   Co.    v.   Hood    (77    111. 

68),  229. 
Quinlen    v.    Welch    (69    Hun,    584; 

23  N.  Y.  Supp.  963),  228. 


Railroad    v.    Bean    (94    Tenn.    388; 

29  S.  W.  370),  234. 
Railroad  Co.   v.   Fain   (12  Lea,  35), 

147. 
Railroad    Co.    v.    Fuller    (17    Wall. 

560;  21  L.  Ed.  710),  30. 
Railroad  Co.  v.  Gladmon   (15  Wall. 

401;   21  L.  Ed.  114),  181. 
Railroad  Co.   v.   McClure   (10  WaU. 

511),  584. 
Railroad  Co.  v.  Stout  (17  Wall.  657; 

21   L.   Ed.   745,   affirming   2   Dill. 

294;    Fed.  Cas.  13504),  176. 
Railroad  Co.  v.  Thomp.son   (54  Ga. 

509),  12. 
Railroad  Co.   v.   Walker   (11   Heisk. 

383),  175. 
Railroad  Com.  v.  Texas  &  P.  Ry.  Co. 

(Tex.  Civ.  App.)  (140  S.  W.  829), 

510. 
Railway  v.   Bowles   (71   Miss.   1003; 

15  So.  138),  356. 
Railway  Co.  v.  Alabama  (128  U.  S. 

99),  596. 
Railway    Co.    v.    Bagley    (60    Kan. 

424;  56  Pac.  759),  389. 
Railway   Co.    v.    B'Shears    (59   Ark. 

237,  244;   27  S.  W.  2),  388. 
Railway  Co.  v.  Husen  (95  U.  S.  465, 

471,  472,  473;  24  L.  Ed.  527),  387. 
Railway  Co.  v.  Lilly  (90  Tenn.  563; 

IS  S.  W.  243;    49  Am.  &  Eng.  R. 

Cas.  495),  234. 
Railway   Co.   v.   Taylor   (210   U.   S. 

281),  722,  760,  762. 


Ixii 


TABLE    OF   CASES. 


[References  are  to  pages. 


Raines  v.  Southern  Ry.  Co.  (N.  C.) 

(85  S.  E.  294),  130,  180,  224,  225, 

240,  248,  253,  292,  303. 
Raisin  v.   Mitchell   (Carr  &   Payne, 

252),  148. 
Raisler  v.  Ohver   (97  Ala.  719;    12 

So.  238;  38  Am.  St.  215),  279. 
Randolph    v.    Brunswick,    etc.,    Ry. 

Co.  (120  Ga.  969;  48  S.  E.  396)  147. 
Raunsaville  v.  Central  R.  Co.  (N.  J.) 

(94  Atl.  392),  36. 
Ray  V.  Merrill  &  King  Lumber  Co. 

(211    Fed.    717;     220    Fed.    295), 

43,  49,  50. 
Reagan    v.     Mercantile    Trust    Co. 

(154U.  S.  413),584. 
Rector  v.   City   Deposit   Bank    (200 

U.  S.  405;    26  Sup.  Ct.  289;    50 

L.Ed. 527),  413. 
Reddington    v.    Railroad    Co.     (108 

Iowa,  96;  78  N.  W.  800),  65. 
Reed    v.    Northeastern    R.    Co.    (37 

S.  C.  42;   16  S.  E.  289),  219. 
Reed  v.  Queen  Anne  R.  Co.  (4  Penn. 

(Del.)  413;  57  Atl.  529),  246. 
Reid  V.   Colorado    (187   U.   S.    137; 

23  Sup.  Ct.  92;    47  L.  Ed.  108), 

79,  509. 
Reiter,  etc.,  Co.  v.  Hawlin  (144  Ala. 

192;   40  So.  Rep.  280),  246. 
Rhodes    v.    Iowa    (170    U.    S.    412; 

18  Sup.  Ct.  664;    42  L.  Ed.  1088, 

reversing  90  Iowa,  496;    58  N.  W. 

887;  21  L.  R.  A.  245),  56,  59,  347. 

Rice  V.  Boston  &   M.  R.  Co.   (203 

Fed.  580),  287,  310,  313. 
Rich  V.  St.  Louis  «t  S.  F.  R.  Co. 

(166  Mo.   App.   379;   148  S.   W. 

1011),  35,  36,  42,  95,  214,  222,  311. 
Richelif'U    v.    Union    P.     R.    Co. 

(Nc},.j    (149  N.  W.  772),  224. 
Richmond,  (!(c.,  Co.  v.  Hammond 

(93  Ala.  181;  9  So.  Rqp.  577),  235. 
Richmond,  etc.,  R.  Co.  v.  Howard 

(79  Ga.  44;  3  S.  E.  426),  144. 


Richmond    R.    Co.    v.    Mitchell    (92 

Ga.  77;    18  S.  E.  290),  146. 
Ried  V.  Great  Eastern  Ry.  Co.   (L. 

R.  3  Q.  R.  555;    37  L.  J.  Q.  B. 

278;     18  L.   T.    (N.   S.)   822;     16 

W.  R.  1040),  273. 
Rief  V.  Great  Northern   (126  Minn. 

430;    148  N.  W.  309),  96,  272. 
Rietveld    v.    Wabash    R.    Co.    (129 

la.  249;    105  N.  W.  515),  223. 
Rio  Grande  So.  R.  Co.  v.  Campbell 

(44  Colo.  1;  96  Pac.  986),  414. 
Ritchie  V.   People   (155  111.   98;    40 

N.  E.  454;  29  L.  R.  A.  79),  601. 
Rivera  v.  Atchison,  T.  &  S.  F.  Ry. 

Co.   (Tex.  Civ.  App.)   (149  S.  W. 

223),  35. 
Roach    v.    Imperial    Mining    Co.    (7 

Fed.  698;    7  Sawy.  224),  219. 
Robb  V.  Connelly  (111  U.  S.  624,  637; 

28  L.  Ed.  542;    4  Sup.  Ct.   544, 

551),  584,  585,  591. 
Robbins   v.    Shelby    County    Taxing 

District    (120  U.   S.   489,   492;    7 

Sup.    Ct.    592;     30    L.    Ed.    694, 

reversing  13  Lea,  303),  32,  125. 
Roberge    v.    Burnham     (124    Mass. 

277),  810. 
Roberts    v.    Albany,    etc.,    R.    Co. 

(114  Ga.  678;  40  S.  E.  698),  145. 
Robertson    v.    Baldwin    (165    U.    S. 

275,   277,   279,   280;    17  Sup.  Ct. 

326;   41  L.  Ed.  715),  283,  284,  286, 
Robertson    v.    Russell    (12   R.    638), 

001. 
Robins   V.    Cubit    (140   L.   T.   535), 

600. 
Robinson   v.    Baltimore   &    Ohio    R. 

Co.    (U.    S.)    (35    Sup.    Ct.    491; 

58  L.  Ed.  — ;   40  App.  D.  C.  169), 

61,  105,  267,  273. 
Robinson    v.    Georgia    R.,    etc.,    Co. 

117  Ga.   16S;    43  S.  E.  452),  227. 


TABLE    OF    CASES. 


Ixiii 


[References  are  to  pages.] 


Rockford,    etc.,    R.    Co.    v.    Coultas 

(67  111.  398),  151. 
Rockford,    etc.,    R.    Co.    v.    Hillmer 

(72  lU.  235),  164. 
Rodman   v.   Missouri   Pac.   Ry.   Co. 

(65  Kan.   645;    70  Pac.   642;    59 

L.  R.  A.  704),  231. 
Rogers  v.   Steamer   St.    Charles    (19 

How.  108;    15  L.  Ed.  563),  167. 
Rogers  v.  United  States  (141  U.  S. 

548;    12  Sup.  Ct.  91;    35  L.  Ed. 

853),   503. 
RoUestone   v.   T.   Cassier   &   Co.    (3 

Ga.  App.  161;   59  S.  E.  442),  145, 

146. 
Roquemore  v.  Albany,  etc.,   R.  Co. 

(127  Ga.  330;    56  S.  E.  424),  145. 
Rose   V.   Des   Moines,   etc.,    R.   Co. 

(39  Iowa,  246),  12. 
Rosney  v.  Erie  R.  Co.  (124  Fed.  90; 

135  Fed.  314;    68  C.  C.  A.  155), 

59,  394,   859. 
Ross  V.  St.  Louis  &  S.  F.  R.  Co. 

(Kan.)  (144  Pac.  844),  292. 
Rowlands  v.  Chicago  &  N.  W.  Ry. 

Co.    (149   Wis.    51;    135   N.    W. 

156),  212. 
Ruck  V.  Chicago  M.  &  St.  P.  Ry. 

Co.    (153  Wis.   158;   140  N.   W. 

1074),  42,  105. 
Runt  V.  Illinois,  etc.,  R.  Co.  (88 

Miss.  575;  41  So.  1),  227. 
Russell  V.  Central  Ry.  (119  Ga.  705; 

46  S.  E.  858),  145. 
Ryan  v.  Carter  (93  U.  S.  78),  400. 
Ryan  v.   Cumberland  Valley   R.   R. 

Co.  (23  Pa.  St.  384),  8. 
Ryland   v.   Atlantic   Coast   Line    R. 

Co.  (57  Fla.  143;  49  So.  745),  136. 


Sabine  Trans.  Case  (227  U.  S.  Ill; 
33  Sup.  Ct.  229;  57  L.  Ed.  442), 
49. 


Safford  v.  Drew  (3  Duer.  627),  229. 
Saiek   v.   Pacific    R.   Co.    (193   Fed. 

303),  287,  288. 
San   Antonio   &   A.   P.    Ry.    Co.    v. 

Wagner  (Tex.  Civ.  App.)   (166  S. 

W.  24),  405,  484,  490. 
San  Antonio,  etc.,  R.  Co.  v.  Brock 

(Tex.  Civ.  App.)   (80  S.  W.  422), 

245. 
Sanders  v.  Central  Ry.  Co.  (123  Ga. 

763;  50  S.  E.  728),  145,  146. 
Sanders  v.  Charleston  &  W.  C.  Ry. 

Co.  (97  S.  C.  50;    81  S.  E.  283), 

82,  88,  95. 
San    Jose    Land,    etc.,    Co.    v.    San 

Jose   Ranch   Co.    (189   U.   S.    177; 

23  Sup.  Ct.  487;    47  L.  Ed.  765, 

affirming    129   Cal.    673;    62   Pac. 

269),  413. 
San  Pedro,  L.  A.  &  S.  L.  R.  Co.  v. 

Davide  (210  Fed.  870;    127  C.  C. 

A.  454),  51,  75,  102. 
San  Pedro,  L.  A.  &  S.  L.  R.  Co.  v. 

United  States  (213  Fed.  326),  512, 

514,  515,  522,  526,  939. 
San  Pedro,  L.  A.  &  S.  L.  R.  Co.  v. 

United  States  (220  Fed.  737),  538. 
Sapphire,  The  (11  Wall.  164;    20  L. 

Ed.  127),  167. 
Saratoga,    The    (94    Fed.    221;     36 

C.   C.   A.   208,   reversing  87   Fed. 

349),  173. 
Sargent  v.  Baublis  (215  111.  430;    74 

N.   E.  455),   490. 
Saunders  v.   Louisville,  etc.,   R.   Co. 

(40  C.  C.  A.  465;    111  Fed.  708), 

234. 

Saunders   v.   Southern   Ry.   Co.    (N. 

C.)  (83  S.  E.  573),  98. 
Savannah,  etc.,  Ry.  Co.  v.  Day  (91 

Ga.  676;    17  S.  E.  959),  138. 
Savannah,   etc.,   R.   Co.   v.   Hatcher 

(118  Ga.  273;    45  S.  E.  239),  145. 


Ixiv 


TABLE    OF    CASES. 


[References  are  to  pages. 


Savannah,   etc.,    R.    Co.    v.   Stewart 

(71  Ga.  427),  136,  138. 
Savannah  El.  Co.  v.  Bell   (124  Ga. 

663;    53  S.  E.  109),  146,  224. 
Sawyer  v.  Sauer  (10  Kan.  466),  133, 

134. 
Scandinavia,    The    (156    Fed.    403), 

172,  173. 
Schaub  V.  Hannibal  &  St.  J.  R.  Co. 

(106  Mo.  74;    16  S.  W.  924),  241. 
Scheffler  v.  Minneapolis,  etc.,  R.  Co. 

(32   Minn.    125;     19   N.   W.   Rep. 

656),  217. 
Schendel  v.  Chicago  &  N.  W.  Ry.  Co. 

(Wis.)  (133  N.  W.  830),  197. 
Schlemmer  v.   Buffalo,   etc.,   R.   Co. 

(205  U.  S.  1;   27  Sup.  Ct.  407;   28 

Sup.    Ct.    616;     51    L.    Ed.    681, 

reversing  207  Pa.  St.  198;    56  Atl. 

417),  22,  24,  67,  118,  280,  333,  335, 

339,  354,  397,  400,  405,  465,  476, 

477,  483,  487,  494,  849,  850. 
Schlemmer  v.  Buffalo,  R.  &  P.  Ry. 

Co.  (220  U.  S.  590;    31  Sup.  Ct. 

561;  55  L.  Ed.  596,  affirmed  222  Pa. 

470;    71  Atl.  1053),  200,  280,  465, 

472,  476,  478,  483,  484,  486,  487. 
Schmidt    v.    Chicago,    etc.,    R.    Co. 

(83  111.  405),  164,  165. 
Schmidt    v.    Deegan    (69    Wis.    300; 

34  N.  W.  83),  274. 
Schreiber    v.    Sharpless    (110    U.    S. 

76,  80),  575,  597. 
Schroeder   v.   Chicago,   etc.,   R.   Co. 

(47  Iowa,  375),  17. 
Schuyler  National   Bank   v.   Bollong 

(24  Neb.  827;   40  N.  W.  417),  279. 
Schwarz  v.  Judd  (28  Minn.  371;    10 

N.  W.  208),  229. 
Schweig  v.  Chicago,  M.  &  St.  P. 

Ry.  Co.  (205  Fed.  96),  515. 
Schweig  V.  Chicago,  M.  &  St.  P. 

Ry.  Co.  (210  Fed.  750),  201..  207, 

515,  540. 


Scott  V.  Donald  (165  U.  S.  58;  17 
Sup.  Ct.  262;  41  L.  Ed.  648), 
31. 

Seaboard  Air  Line  Ry.  v.  Duvall 
(225  U.  S.  477;    32  Sup.  Ct.  790; 

56  L.  Ed.  1171;  57  L.  Ed.  — ), 
69,  310,  321,  322. 

Seaboard  Air  Line  R.  Co.  v.  Horton 
(233  U.  S.  492;  58  L.  Ed.  1062; 
34  Sup.  Ct.  635;    228  U.  S.  433; 

57  L.  Ed.  907,  reversing  162  N.  C. 
424;  78  S.  E.  494),  4,  35,  200,  201, 
202,  203,  207,  211,  291,  292,  322, 
323. 

Seaboard  Air  Line  R.  Co.  v.  Moore 

(228  U.  S.  433;    33  Sup.  Ct.  580; 

57  L.  Ed.  907,  affirming  193  Fed. 

1022;    113  C.  C.  A.  668),  255,  312, 

320. 
Seaboard   Air   Line   Ry.   v.   Padgett 

(U.  S.)    (35  Sup.  Ct.  481;    58  L. 

Ed.  — ,  affirming  (S.  C.)  83  S.  E. 

633),  322. 
Seaboard  Air  Line  R.  Co.  v.  Tilgh- 

man  (35  Sup.  Ct.  653,  704,  reversing 

167  N.  C.  163;  83  S.  E.  315,  1090), 

237,  253. 
Sears  v.  Atlantic  C.  L.  R.  Co.  (N. 
.  ,,C.)  (86  S.  E.  176),  95,  208,  292. 
Seattle,  etc.,  Co.  v.  Hartless  (144 

Fed.  379),  249. 
Seawall  v.  Kansas  City,  etc.,  R. 

Co.  (119  Mo.  222;  24  S.  W.  1002), 

58,  355. 
Second  Employer's  Liability  Case 

(223  U.  S.  1;  33  Sup.  Ct.  169;  56 

L.  Ed.  327),  73,  116,  222,  267. 
Secord    v.    St.    Paul,    etc.,    R.    Co. 

(5  McCrary,  515),  181. 
Senn    v.     Southern     Ry.     Co.     (124 

Mo.  621;  28  S.  W.  66),  235. 
Serapis,   The   (51    Fed.   92,   266,   re- 
versing   49    Fed.    393,    396),    167, 

168,  173. 
Serensen  v.   Northern  Pac.   Ry.  Co. 

(45  Fed.  407).  229. 


TABLE    OF   CASES. 


Ixv 


[References  are  to  pages.] 


Seringapatam,  The  (5  N.  C.  61,  66), 

167. 
Seward    v.    The    Vera    Cruz    L.    R. 

(10  App.  Cas.  59),  239,  293. 
Shade    v.    Northern    Pac.    Ry.    Co. 

(206  Fed.  353),  49,  50,  69,  296. 
Shanks  v.  Delaware,  L.  &  W.  R.  Co. 

(N.  Y.)  (108N.  E.  644),  108. 
Shanks  v.  Delaware,  L.  E.  &  W.  R. 

Co.  (163  App.  Div.  565;    148  N.  Y. 

Supp.  1034),  69,  70,  76,  106. 
Shanley  v.  Philadelphia  &  R.   R. 

Co.  (221  Fed.  1012),  116. 
Shannon  v.  Boston  &  M.  R.  Co. 

(Vt.)  (92  Atl.  167),  35,  231,  232. 
Shannon  v.  Union  R.  Co.  (27  R.  I. 

475;  63  Atl.  488),  104. 
Shaver   v.    Pennsylvania   Co.    (71 

Fed.  931),  491. 
Sheean   v.   New  York   (75  N.   Y, 

Supp.  802),  921. 
Shelby,    etc.,    Co.    v.    Southern    Ry. 

Co.  (147  N.  C.  66;   60  S.  E.  721), 

58,  355. 
Sherlock    v.    Ailing    (93    U.    S.    99; 

23  L.   Ed.  819,   affirming  44  Ind. 

184),  21,  79,  218,  572,  594. 
Sherman  v.  Johnson   (58  Yt.  40;    2 

Atl. 707),  217. 
Sherman  v.  Western  Stage  Co.    (24 

Iowa,  515),  232. 
Sherrer  v.  Banner  Rubber  Co.   (227 

Mo.  347;    126  S.  W.  1037),  461. 
Shohoney  v.  Quincy,  O.  &  K.  C.  Ry. 

Co.  (223  Mo.  649;  122  S.  W.  1025), 

467,  489,  491. 
Shreveport   v.   Cole    (129   U.   S.   36; 

32  L.  Ed.  589;    9  Sup.  Ct.  210), 

591. 
Siebold,    Ex   parte    (100    U.   S.   371; 

25  L.  Ed.  717),  78,  590. 
Siegel  v.  New  York  Cent.  &  H.  R. 

R.  Co.   (178  Fed.  873),  350,  365, 

372,  421,  422,  426,  443,  478. 
Simmons  v.   Seaboard,   etc.,    R.   Co. 

(120  Ga.  225;   47  S.  E.  570),  145. 


Sims   v.    Macon,   etc.,    Ry.    Co.    (28 

Ga.  93),  146. 
Sinnot  v.  Davenport  (22  How.  227; 

16  L.  Ed.  243),  509. 
Sluber  v.  McEntee  (142  N.  Y.  200; 

47  N.  Y.  App.  Div.  471;   66  N.  Y. 

Supp.  580,  affirmed  164  N.  Y.  58; 

58  N.  E.  4),  274. 
Small  V.  Kreech   (Tenn.)   (46  S.  W. 

1019),  274. 
Smith   V.   Alabama   (124  U.   S.  465; 

8  Sup.  Ct.  564;    31   L.  Ed.  508, 

affirming  76  Ala.  69),  33,  509. 
Smith  V.  Atlantic  Coast  Line  R.  Co. 

(210  Fed.  761;    127  C.  C.  A.  311), 

307,  308,  483,  484. 
Smith    V.    Camas    Prairie    Ry.    Co. 

(216  Fed.  799),  35,  287. 
Smith  V.  Detroit  &  T.  S.  L.  R.  Co. 

(175  Fed.  506),  289,  295,  296. 
Smith   V.    Industrial   Accident   Com. 

(Calif. App.)  (147  Pac.  600),  36, 97. 
Smith  V.  Lehigh,  etc.,  R.  Co.   (177 

N.  Y.  379;  69  N.  E.  729),  250. 
Smith  V.  Michigan,  etc.,  R.  Co.  (35 

Ind.  App.  188;   73  N.  E.  928),  227. 
Smith  V.   Nashville,  etc.,   R.  Co.   (6 

Heisk.  174),  147,  175. 
Smith    V.    Northern    Pac.    Ry.    Co. 

(79    Wash.    448;     140    Pac.    685), 

47,  98,  297,  301,  324. 
Smith    V.    Southern    Ry.    Co.    (129 

N.  C.  374;  40  S.  E.  86),  519. 
Smith  V.  St.  Louis  &  S.  F.  R.  Co. 

(Kas.)  (148  Pac.  759),  255. 
Smith  V.  State  (66  Md.  215;    7  Atl. 

49),  389. 
Smith    V.    United    States    (157    Fed. 

721;  85  C.  C.  A.  353),  400. 
Snead   v.   Central   Georgia   Ry.   Co. 

(151  Fed.  608),  24,  356. 
Snyder  v.  Lake  Shore,  etc.,  Ry.  Co. 

(131  Mich.   418;  91   N.  W.   Rep. 

643),  246. 


Ixvi 


TABLE    OF   CASES. 


[References  are  to  pages.] 


Snyder    v.    Southern    Pac.    Ry.    Co. 

(187     Fed.     492;      Appendix     G), 

334,  446,  847. 
South  Carolina  R.   Co.   v.   Mix   (68 

Ga.  572),  303. 
South  Covington  &  C.  St.  Ry.  Co. 

V.  Co\4ngton  (U.  S.)  (35  Sup.  Ct. 

158;    58   L.   Ed. — ,   reversing   146 

Ky.  592;   143  S.  W.  78),  54. 
South  Covington  &  C.  St.  Ry.  Co. 

V.  Finan  (153  Ky.  340;    155  S.  W. 

742),  35,  39,  54,  291,  305,  316. 
South,  etc.,  R.  Co.  v.  SuUivan  (59 

Ala.  272),  274. 
Southern  Cotton  Oil  Co.  v.  Skipper 

(125  Ga.  368;  5  S.  E.  110),  143. 
Southern,    etc.,    R.    Co.    v.    Johnson 

(114  Ga.  329;   40  S.  E.  235),  14. 
Southern,    etc.,    Co.   v.    Cassin    (111 

Ga.  575;    36  S.  E.  881),  273. 
Southern   Ind.   Exp.    Co.    v.    United 

States  Exp.  Co.  (88  Fed.  659),  363. 
Southern    Ind.    R.    Co.    v.    Harrell 

(161  Ind.  262;    68  N.  E.  262),  66. 
Southern    Pacific   Co.    v.    Hall    (100 

Fed.  760),  880. 
Southern    Pacific    Co.    v.    AIcGinnis 

(174  Fed.  649),  38. 
Southern    Pac.    Co.    v.    Pillsbury 

(Cal.)  (151  Pac.  277),  58, 101,  105, 

273. 
Southern  Pacific  Co.  v.  Tomlinson 

(163  U.  S.  369;  16  Sup.  Ct.  171), 

274. 
Southern    Pacific   Co.    v.    Vaughn 

(Tex.  Civ.  App.)  (165  S.  W.  885), 

315. 
Southern  Pacific  R.  Co.  v.  Allen  (48 

Tex.   Civ.   App.   66;   106  S.   W. 

Rep.  441),  280,  472,  487. 
Southern    R.    Co.    v.    Maxwell    (113 

Tenn.  464;    82  S.  W.  Rep.  1137), 

302. 
Southern   Ry.  Co.  v.  Anslcy   (8  Ga. 

App.   .325;     68   S.    E.    lOSG),    2f)5, 

296,  304,  310,  314.  317. 


Southern  Ry.  Co.  v.  Bandy  (120  Ga. 

463;   47  S.  E.  923),  145. 
Southern    Ry.    Co.    v.    Barfield    (115 

Ga.  724;    42  S.  E.  95),  147. 
Southern   Ry.    Co.   v.   Bennett    (233 

U.  S.  80;    34  Sup.  Ct.  566;   57  L. 

Ed.  — ),  321. 
Southern    Ry.    Co.    v.    Brown    (126 

Ga.  1;    54  S.  E.  911),  145. 
Southern    Ry.    Co.    v.    Carson    (194 

U.  S.   137;    24  Sup.  Ct.  609;    48 

L.  Ed.  907,  affirming  68  S.  C.  55; 

46  S.  E.  525),  414,  467,  469,  470. 
Southern    Ry.    Co.    v.    Cunningham 

(123  Ga.  90;    50  S.  E.  979),  147. 
Southern  Ry.  Co.  v.  Dean  (Ga.)  (57 

S.  E.  702),  146. 
Southern   Ry.   Co.   v.  Crockett   (234 

U.  S.  725;    34  Sup.  Ct.  897;    58 

L.  Ed.  1564),  203,  204,  208,  322, 

339,  340,  361,  362,  373,  397,  398, 

401,  402,  408,  409,  410,  465,  473. 
Southern  Ry.  Co.  v.  Gadd  (207  Fed. 

277;    125  C.  C.  A.  21;    233  U.  S. 

572;    34  Sup.  Ct.  696;    58  L.  Ed. 

— ,   affirming  207   Fed.   277),   210, 

320,  323,  325. 
Southern   Ry.   Co.   v.   Gladner    (Ga. 

App.)   (58  S.  E.  249),   145. 
Southern  Ry.  Co.  v.  Gore  (128  Ga. 

027;    58  S.  E.  180),  145. 
Southern  Ry.  Co.  v.  Howerton  (Ind.) 

(105    N.    E.    1025,    reversing    101 

N.  E.   121;    103  N.  E.   121),  36, 

201,  203,  212,  287,  305,  324. 
Southern    Ry.    Co.    v.    Jacobs    (166 

Va.  — ;   81  S.  E.  99),  35,  95,  203, 

204,  208,  211. 
Southern  Ry.  Co.  v.  King  (217  U.  S. 

524;    30  Sup.  Ct.  594;    54  L.  Ed. 

868,   affirming    160   Fed.   332;     87 

CCA.  284),  344. 
Southern    Ry.    Co.    v.    Roger    (219 

Fed.  702),  311. 


TABLE    OF   CASES. 


Ixvii 


[References  are  to  pages.] 


Southern  Ry.  Co.  v.  Monchett  (3 

Ga.  App.  266;  59  S.  E.  710),  145. 
Southern  Ry.  Co.  v.  Peters  (Ala.) 

(69  So.  611),  95,  98,  181,  237,  292, 

312. 
Southern  Ry.  Co.  v.  Puckett  (Ga. 

App.)  (85  S.  E.  809),  94,  287. 
Southern  Ry.  Co.  v.  Rowe  (2  Ga. 

App.  557;  59  S.  E.  462),  145. 
Southern  Ry.  Co.  v.  R.  R.  Com. 

(Ind.)  (109  N.  E.  759),  414. 
Southern  Ry.  Co.  v.  Railroad  Com- 
mission (236  U.  S.  439;  35  Sup. 

Ct.  304;  54  L.  Ed.  — ,  reversing 

179  Ind.  23;  100  N.  E.  337),  39, 

338,  344,  414,  415,  498,  502. 
Southern  Ry.  Co.  v.  Simmons  (105 

Va.  651;  55  S.  E.  459;  44  Am.  & 

Eng.  R.  Cas.  572),  401,  405,  408. 
Southern  Ry.   Co.   v.   Smith    (205 

Fed.  360;  123  C.  C.  A.  488),  95, 

258,  291. 
Southern  Ry.  Co.  v.  Snyder  (187 

Fed.  497,  492),  333,  334,  340,  354, 

356,  357,  373,  400. 
Southern    Ry.    Co.    v.    Snyder    (205 

Fed.  868;    124  C.  C.  A.  60),  33, 

37,  433. 
Southern   Ry.   Co.   v.   United  States 

(222  U.  S.  20;    32  Sup.  Ct.  2;    51 

L.  Ed.  681;    3  N.  C.  C.  822;    56 

L.  Ed.  72,  affirming  164  Fed.  347; 

54  L.  Ed.  868),  334,  336.  338,  339, 

351,  358,  361,  373,  409,  424,  465, 

892,  907. 
Southern  Ry.   Co.  v.  Vaughn   (Tex. 

Civ.  App.)   (164  S.  W.  885),  252. 
Southern   Ry.   Co.   v.   Vessell   (Ala.) 

(68  So.  336),  224. 
Southern  Ry.   Co.  v.  Wiley   (9   Ca. 

App.  249),  71  S.  E.  11),  140. 
Southwestern  Brewery  &  Ice  Co.  v. 

Schmidt  (226  U.  S.  162;    33  Sup. 

Ct.  68;    57  L.  Ed.  170),  200. 
Southwestern,  etc.,  R.  Co.  v.  Paulk 

(24  Ga.  536),  218. 
Southwestern    R.    Co.     v.    Johnson 

(60  Ga.  667),  142,  146. 


Spain    V.    St.    Louis,    etc.,    R.    Co. 

(151  Fed.  522),  24,  334. 
Spinder  v.  Atchison,  T.  &  S.  F.  Ry. 

Co.  (Kan.)  (148  Pac.  747),  98,  202. 
Spokane  &   I.  E.  R.  Co.  v.  United 

States  (210  Fed.  243;   127  C.  C.  A. 

61,   affirming   206   Fed.   988;    Ap- 
pendix G),  398,  415,  417,  498,  503, 

903. 
Sprague    v.    Wisconsin    Central    R. 

Co.    (104   Minn.   58;     116   N.   W. 

104),  469,  478,  483,  487. 
Springfield,  etc.,  Ry.  Co.  v.  DeCamp 

(11  111.  App.  475),  161. 
Stafford  v.   Norfolk  &   W.   Ry.   Co. 

(202  Fed.  605),  78,  310,  313. 
Staley  v.  Illinois  Cent.  R.  Co.  (111.) 

(109  N.  E.  342,  reversing  186  111. 

App.  593),  273,  292. 
Standard,   etc.,   Co.   v.   Munsey    (33 

Tex.    Civ.    App.    416;     76    S.    W. 

931),  247. 
Starin  v.  New  York  (115  U.  S.  248; 

6   Sup.   Ct.   28;    29   L.   Ed.   388, 

affirming  21  Fed.  593),  489. 
Staunton   Coal   Co.   v.   Fischer   (119 

111.  App.  284),  230. 
St.     Bernard     Cypres     v.     Johnson 

(222  Fed.  246),  101. 
St.  Louis  &  S.  F.  R.  Co.  v.  Conarty 

(35    Sup.    Ct.    785,    reversing    106 

Ark.  421;    155  S.  W.  93),  95,  101, 

220,  260,  264,  286,  287,  317,   426, 

469. 

St.  Louis  &  S.  F.  R.  R.  v.  Conerty 
(238  U.  S.  243),  110. 

St.  Louis  &  S.  F.  R.  Co.  v.  Cox 
(Tex.  Civ.  App.)  (159  S.  W.  1042), 
295  310 

St.  Louis  &  S.  F.  R.  Co.  v.  Delk 
(158  Fed.  931;  86  C.  C.  A.  95;  14 
A.  &  E.  Ann.  Cas.  233;  reversed 
in  220  U.  S.  578;  31  Sup.  Ct.  617; 
55  L.  Ed.  590),  68,  333,  349,  350, 
356,  357,  371,  375,  411,  440,  455, 
472,  811. 


Ixviii 


TABLE    OF    CASES. 


[References  are  to  pages.] 


St.  Louis  &  S.  F.  R.  Co.  v.  Fithian 

(106   Ark.    491;     155   S.    W.    88), 

286,  291,  317. 
St.  Louis  &  S.  F.  R.  Co.  v.  Snowden 

(Okla.)   (149  Pac.   1083),  38,  205, 

212,  295,  297. 
St.  Louis  &  S.  F.  Ry.  Co.  v.  State 

(87    Ark.    562;     113    S.    W.    203), 

68,  355. 
St.    Louis    Cordage    Co.    v.    Miller 

(126  Fed.  495),  472. 
St.    Louis,    etc.,    R.    Co.    v.    Black 

(79  Ark.  179;  95  S.  W.  155),  302. 
St.    Louis,    etc.,    R.    Co.    v.    Cleere 

(Ark.)  (88  S.  W.  995),  247. 
St.    Louis,    etc.,    R.    Co.    v.    Duke 

(192  Fed.  309;    112  C.  C.  A.  564), 

244. 
St.  Louis,  etc.,  R.  Co.  v.  Geer  (Tex. 

Civ.  App.)  (149  S.  W.  1178),  222, 

242,  244,  250,  258. 
St.  Louis,  etc.,  R.  Co.  v.  Manly  (58 

111.  300),  163. 
St.   Louis,   etc.,   R.   Co.   v.   Mathias 

(Ark.)  (91  S.  W.  763),  248. 
St.  Louis,  etc.,  R.  Co.  v.  INIatthews 

(165  U.  S.  1;    41  L.  Ed.  611;    17 

Sup.   Ct.   243,   affirming   121   Mo. 

298;    24  S.  W.  591;    25  L.  R.  A. 

161),  12. 
St.  Louis,  etc.,  R.  Co.  v.  Paul  (173 

U.  S.  404;   43  L.  Ed.  746;   19  Sup. 

Ct.    419,    affirming    64    Ark.    83; 

37  L.  R.  A.  504;    62  Am.  St.  154; 

40  S.  W.  705),  13,  19. 
St.  Louis,  etc.,  R.  Co.  v.  Todd  (.36 

111.  409),  163,  164. 
St.   Louis,   etc.,   Ry.   Co.   v.   Bowles 

(Tex.  Civ.  App.)   (72  S.  W.  Rep. 

451),  245. 
St.  Louis,  etc.,  R.  Co.  v.  Haist  (71 

Ark.  258;  72  S.  W.  893),  248. 
St.   Louis,  etc.,   Ry.  Co.  v.  Vickers 

(122  U.  S.  360),  584. 


St.   Louis,   I.   M,  &  S.  Ry.   Co.   v. 

Coke    (Ark.)    (175    S.    W.    1177), 

297,  314,  325. 
St.   Louis,   I.   M.  &   S.   Ry.   Co.  v. 

Crafts,  (237  U.  S.  — ;  35  Sup.  Ct. 

704,    707,    affirming  (Ark.)   171  S. 

W.    1185),    217,    218,    220a,    233, 

236,  262,  204,  293,  326. 
St.   Louis,   I.   M.   &   S.   Ry.   Co.   v. 

Conley  (187  Fed.  949;  110  C.  C.  A. 

97),  4,  22,  41. 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Daw- 
son (68  Ark.  1;   56  S.  V/.  46),  261. 
St.   Louis,   I.   M.   &   S.   Ry.   Co.   v. 

Hesteriy  (228  U.  S.  702;    33  Sup. 

Ct.  703;   57  L.  Ed.  1031,  reversing 

98  Ark.  240;    135  S.  W.  874),  35, 

36,    40,   217,   222,   240,   252,   261, 

276,  295,  297,  299,  306,  321,  322, 

325,  361. 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Mc- 

Whirter  (229  U.  S.  265;    33  Sup. 

Ct.  858;    57  L.  Ed.  1179,  reversing 

145  Ky.  427;    140  S.  W.  672),  40, 

208,  321,  322,  323,  469,  506,  513, 

521,  540. 
St.  Louis,  I.  M.  &  S.  R.  Co.  V.  Neal 

(83  Ark.  591;    78  S.  W.  220;    98 

S.  W.  958;   affirmed  210  U.  S.  281; 

28  Sup.  Ct.  616;   52  L.  Ed.  1061), 

332,  409,  413,  423,  488,  489. 
St.   Louis,   I.   M.  &   S.   Ry.   Co.  v- 

Neal    (71    Ark.    445;     78    S.    W. 

220),  472. 
St.   Louis,   I.   M.   &   S.   Ry.   Co.   v. 

Rodgens   (Ark.)    (176  S.   W.   696), 

244,  256,  259,  262,  305,  312. 
St.   Louis,   I.   M.   &   S.   Ry.  Co.   v. 

Stamps  (84  Ark.  241;    104  S.  W. 

1114),  261. 
St.   Louis,   I.   &   M.   S.   Ry.   Co.   v. 

State   (102  Ark.  205;    143  S.  W. 

913),  536. 


TABLE    OF    CASES. 


Ixix 


[References  are  to  pages. 


St.  Louis,  I.   M.  &  S.   Ry.   Co.   v. 

Taylor   (210  U.   S.   281,   286;    28 

Sup.   Ct.    616;     52   L.    Ed.    1061; 

21  Am.   Neg.   Rep.  464;    74  Ark. 

445;    78  S.  W.  220;    83  Ark.  591; 

98  S.  W.  959),  40,  280,  322,  332, 

333,  334,  335,  339,  357,  409,  410, 

413,  423,  457,  465,  467,  487,  576, 

798,  803,  811,  812,  886,  887. 

St.   Louis,   I.   M.   &   S.   Ry.   Co.   v. 

York    (92  Ark.    554;     123   S.   W. 

376),  406,  426,  478,  483,  487. 

St.  Louis,  S.  F.  &  T.  R.  Co.  v.  Seale 

(229  U.  S.  156;    33  Sup.  Ct.  651; 

57   L.    Ed.    1129,    reversing    (Tex. 

Civ.  App.)   148  S.  W.   1099),  35, 

36,  40,  69,  94,  127,  214,  217,  222, 

293.  295,  310,  321,  323. 

St.  Louis  S.  W.  Ry.  Co.  v.  Anderson 

(Ark.)   (173  S.  W.  834),  95,  96, 

129,  472,  484. 

St.  Louis  S.  W.  Ry.  Co.  v.  Brothers 

(Tex.  Civ.  App.)  (165  S.  W.  488), 

102,  213. 

St.  Louis  S.  W.  Ry.  Co.  v.  Harvey 

(144  Fed.  806),  110. 

St.  Louis,  S.  &T.  Ry .  Co.  v.  Johnston 

(78  Tex.  536;  15  S.  W.  104),  259. 

St.  Louis  S.  W.  Ry.  Co.  v.  United 

States  (183  Fed.  770;  106  C.  C. 

A.  136),  493,  495,  500,  927. 

Staley  v.  Illinois  Central  R.  Co. 

(111.)    (109  N.  E.  342,   reversing 

iS6  111.  App.  593),  36,  76,  82,  102. 

State  V.  Adams  Exp.  Co.   (170  Ind. 

138;    85  N.  E.  337,  936),  414. 
State    V.    Baltimore,    etc.,    Ry.    Co. 

(36  Fed.  655),  266. 
State  V.  Chicago,  M.  &  St.  P.  Ry. 

Co.    (40   Minn.    267;     41    N.    W. 

1047),  58,  355. 
State  V.  Chicago,  M.  &  St.  P.  Ry. 

Co.    (136   Wis.   407;     117   N.   W. 

686;     19  L.   R.   A.    (N.   S.)   326), 

119,  338,  351,  510,  525,  573,  596. 


State  V.  Kansas  City,  F.  S.  &  M.  R. 

Co.  (70  Mo.  App.  634),  500. 
State  V.  Lauer  (55  N.  J.  L.  205;   26 

Atl.  180;  20  L.  R.  A.  61),  132. 
State  V.  Loomis  (115  Mo.  807),  19. 
State    V.    Missouri    Pacific    Ry.    Co. 

(222  Mo.   658;     111   S.   W.   500), 

298,  338,  414,  510,  573,  596. 
State    V.    Northern    Pacific    R.    Co. 

(53    Wash.    673;     102    Pac.    876), 

510. 
State   V.   Northern  Pacific   Ry.   Co. 

(36  Mont.  .582;    93  Pac.  945;    15 

L.  R.  A.  (N.  S.)  134),  338,  510. 
State  V.  Soale  (36  Ind.  App.  73;    74 

N.  E.  Ill),  228. 
State  V.  Texas  &  N.  0.  R.  Co.  (Tex. 

Civ.  App.)   (124  S.  W.  984),  338, 

510. 
State     V.     Wabash     R.     Co.     (Mo.) 

(141  S.  W.  646),  338,  510. 
State    Freight   Tax   Case    (15   Wall. 

232,  275,  280;    21  L.  Ed.  146;   re- 
versing  62   Pa.    St.    286;     1   Am. 

Rep.  399),  32,  125,  387. 
Steam  Dredge  No.  1    (134  Fed.  161; 

67  C.  C.  A.  67;    69  L.  R.  A.  293) 

(denying  the   applicability  of    the 

doctrine   of   Davies   v.   Mann)    10 

Mes.  &  Wils.  546),  168. 
Stearns  v.  Chicago,  R.  I.  &  P.  R.  Co. 

(148  N.  W.  128),  365. 
Steinhouser  v.  Savannah,  etc.,  R.  Co. 

(118  Ga.  195;  44  S.  E.  800),  147. 
Stemples  v.  Metropolitan  St.  Ry.  Co. 

(174  N.  Y.  512;    66  N.  E.  1117), 

247,  248. 
Stephen  Morgan,  The  (94  U.  S.  599; 

23  L.  Ed.  930),  168. 
Stephens  v.  American,  etc.,  Co.   (38 

Ind.  App.  414;  78  N.  E.  335),  176. 
Stephens   v.   Chicago,   M.   &   St.   P. 

Ry.  Co.  (206  Fed.  855),  287. 


Ixx 


TABLE    OF    CASES. 


[References  are  to  pages.] 


Stephens  v.   Nashville,   etc.,   R.   Co. 

(10  Lea,  448),   274. 
Stephens\411e,   N.   &   S.   T.   Ry.   Co. 

V.   Shelton   (Tex.  Civ.  App.)    (163 

S.  W.   1034),  255. 
Sterling,  The  (106  U.  S.  647;    1  Sup. 

Ct.  89;  27  L.  Ed.  98),  168. 
Sternberg  v.  Cape  Fear  &  S.  V.  R. 

Co.  (29  S.  C.  510;    7  S.  E.  836), 

58,  355. 
Stewart    v.    Bloom    (11    Wall.    493), 

927. 
Stewart   v.    Seaboard   Air   Line   Ry. 

(115  Ga.  624;    41  S.  E.  981),  147. 
Stewart  v.  Terre  Haute,  etc.,  R.  Co. 

(103  Ind.  44;   2  S.  E.  208),  229. 
Stockmann  v.  Terre  Haute,  etc.,  R. 

Co.   (15  Mo.  App.  503),  235. 
Stone   V.    Railroad   Co.    (171    Mass. 

536),  853. 
Stratton  v.  Central  City  Horse  Ry. 

Co.  (95  111.  25),  154. 
Stratton  v.  Morris  (89  Tenn.  497),  17. 
Strauser  v.  Chicago,  B.  &  Q.  R.  Co. 

(193  Fed.  293),  287,  288. 
Stroble   v.    Railroad   Co.    (71    Iowa, 

555;   31  N.  W.  63),  64. 
Strode  v.  St.  Louis  Transit  Co.  (Mo.) 

(87  S.  W.  976),  273. 
Strother    v.    Union    Pacific    R.    Co. 

(220  Fed.  731),  289,  304. 
Stuart  v.  Evans  (31  W.  R.  706),  6, 

601. 
Stucke   V.   Orleans   R.   Co.    (50   La. 

Ann.  188;    23  So.  342),  11. 
Sturges  V.  Crowninshield   (4  Wheat. 

122),  584. 
Sullivan   v.   Union  Pac.  Ry.   Co.   (2 

Fed.  447;    1   McCrary,  301),  217. 
Sunnyside,   The   (91   U.   S.   208;    23 

L.     Ed.     302,     reversing     Brown, 

Ad.   Cas.   227;    Fed.   Cas.   13620J, 

167. 


Suttle  V.  Choctaw,  O.  &  G.  R.  Co. 

(144  Fed.  668;    75  C.  C.  A.  470), 

397,  405,  406,  478,  479,  481. 
Sweet  V.  Chicago  &  N.  W.  Ry.  Co. 

(157  Wis.  400;    147  N.  W.  1054), 

208,  210,  204,  243,  293,  311. 
Sweetland   v.   Chicago,   etc.,   R.   Co. 

(117  Mich.  329;    75  N.  W.  1066; 

43  L.  R.  A.  568),  261. 
Swift   &   Co.   V.   Johnson   (138   Fed. 

867),  227. 
Swoboda    v.    Union    Pacific    R.    Co. 

(87    Neb.    200;     27    N.    W.    215), 

23,  117. 
Syracuse,  The  (18  Fed.  828),  168. 


Taggert    v.    Republic    Iron    &    Steel 

Co.   (141  Fed.  910;    73  C.  C.  A. 

144),  402,  404,  410. 
Tanor   v.    Municipal,    etc.,    Co.    (84 

N.  Y.  Stat.   1053;    88  App.  Div. 

251),  223. 
Taylor  v.  Boston,  etc.,  R.  Co.   (188 

Mass.  390;  74  N.  E.  591),  356,  370, 

380,  414. 
Taylor    v.    Carryl    (20    How.    595; 

15  L.  Ed.  1028),  585. 
Taylor   v.   Cranberry,   etc.,   Co.    (94 

N.  C.  525),  231. 
Taylor  v.   Prairie   Peeble   Phosphate 

Co.  (61  Fla.  455;  54  So.  904),  398. 
Taylor    v.    San    Antonio,    etc.,    Co. 

(15    Tex.    Civ.    App.    344;     93    S. 

W.  674),  228. 
Taylor's  Case  (see  St.  Louis,  I.  M. 

&  S.  R.  Co.  V.  Taylor). 
Taylor   v.    Southern    Ry.    Co.    (Ind. 

App.)  (101  N.  E.  506),  304. 
Taylor    v.    Southern    Ry.    Co.    (178 

Fed.  380),  37,  39,  74. 


TABLE    OF    CASES. 


Ixxi 


[References  are  to  pages. 


Taylor   v.    Taylor    (232   U.    S.    363; 

34  Sup.  Ct.  350;    58  L.  Ed.  638; 

204  N.  Y.  135;    97  N.  E.  (N.  Y.) 

502;    Am.  Cas.  1913  D,  276;    144 

App.  Div.  634;    128  N.  Y.  Supp. 

378),  35,  220,  250,  259,  262. 
Taylor    v.    United    States    (3    How. 

197;    11  L.  Ed.  559),  393. 
Taylor  v.   Wells   Fargo   &   Co.    (220 

Fed.  796),  267. 
Tays   V.    Echer    (6   Tex.    Civ.    App. 

188;  24S.  W.  954),519. 
Teal  V.  Fulton  (53  U.  S.  292),  586, 

587. 
Teel  V.  Chesapeake  &  Ohio  Ry.  Co. 

(204  Fed.  918;    123  C.  C.  A.  240; 

47  L.  R.  A.  (N.  S.)  21),  287. 
Telegraph  Co.   v.  Texas   (105  U.  S. 

460),  32. 
Tennessee  v.  Davis  (100  U.  S.  257), 

584. 
Terre  Haute,  etc.,  R.  Co.  v.  Voelker 

(31  111.  App.  314),  155,  161. 
Teutonia,  The  (23  Wall.  77;    23  L. 

Ed.  44),  167. 
Texarkana  &  Ft.  S.  Ry.  Co.  v.  Casey 

(Tex.  Civ.  App.)  (172  S.  W.  729), 

307,  309. 
Texarkana,    etc.,    R.    Co.    v.    Fugier 

(16  Tex.  Ct.  724;    95  S.  W.  563), 

249. 
Texas   &    N.    O.    R.    Co.    v.    Miller 

(221  U.  S.  408;    31  Sup.  Ct.  534; 

55  L.  Ed.  789),  491. 
Texas   &    N.    0.    R.    Co.    v.    Sabine 

Transportation    Co.     (121    S.    W. 

256),  58. 
Texas  &   P.   R.   Co.   v.   Carhn    (111 

Fed.  777;    189  U.  S.  354;    23  Sup. 

Ct.  585;  47  L.  Ed.  849),  67. 
Texas  &  P.  R.  Co.  v.  Harvey  (228 

U.  S.  521;    33  Sup.  Ct.  518;    57 

L.  Ed.  852),  200. 


Texas   &    P.    Ry.   Co.    v.    Interstate 

Commerce  Commission  (162  U.  S. 

197;    16  Sup.  Ct.  666;    40  L.  Ed. 

940,    reversing   4   Interstate   Com. 

Rep.  408;  6  C.  C.  A.  653;   20  U.  S. 

App.  1;    57  Fed.  948),  381,  383. 
Texas  &  P.  Ry.  Co.  v.  Rigsby  (222 

Fed.  221),  336,  469. 
Texas  &   P.   Ry.  Co.  v.  Swcaringen 

(122  Fed.  193),  472. 
Texas  &  P.  Ry.  Co.  v.  White  (Tex. 

Civ.  App.)  (177  S.  W.  1185),  78, 

102,  202. 
Texas,  etc.,  R.  Co.  v.  Green  (15 

Tex.  Ct.  133;  95  S.  W.  694),  248, 

249. 
Texas,  etc.,  Ry.  Co.  v.  Robertson 

(82   Tex.   657;   17   S.   W.    1041), 

228. 
Thelluson  v.  Woodford  (4  Ves.  227; 

11  Ves.  112),  228. 
Third  St.  R.  Co.  v.  Lewis  (173  U. 

S.  457;  19  Sup.  Ct.  451;  43  L.  Ed. 

766),  488. 
Thomas  v.  Boston  (219  Fed.  180), 

100. 
Thomas  v.  Boston  &  M.  R.  R.  (218 

Fed.  113),  75. 
Thomas  v.  Chicago  &  N.  W.  Ry. 

Co.  (202  Fed.  766),  35,  218,  220, 

222,  230,  240,  286,  287,  294,  296, 

301,  304,  317. 
Thomas  v.  Georgia,  etc.,  R.  Co. 

(38  Ga.  222),  396. 
Thomas  v.  Quartermain  (18  Q.  B. 

693),  6,  601. 
Thomas  v.  Union  Pac.  Ry.  Co.  (1 

Utah,  132),  217. 
Thompson  v.  Central  R.  Co.    (54 

Ga.  509),  138. 
Thompson  v.  Cincinnati,  N.  O.  & 

T.  P.  Ry.  Co.  (165  Ky.  256;  176 

S.  W.  1006),  100,  305,  306. 
Thompson  v.  Ft.  Worth,  etc.,  R. 

Co.  (97  Tex.  590;  80  S.  W.  990), 

274. 
Thompson  v.  Wabash  R.  Co.  (Mo.) 

(171  S.  W.  364),  36,  59. 


Ixxii 


TABLE    OF    CASES. 


[References  are  to  pages.] 


Thompson  v.  Wabash  Ry.  Co.   (184 

Fed.  55-4),  214,  233. 
Thomson  v.  Columbia  &  P.  S.  S.  Co. 

(205  Fed.  203),  93. 
Thornbro  v.  Kansas  City,  M.  &  O. 

Ry.  Co.   (91  Kan.  084;    139  Pac. 

410,    on    rehearing    92    Kan.    681; 

142  Pac.   250),   95,   97,   208,   214, 

237,  255,  412,  472,  485. 
Thornburg    v.    American,    etc.,    Co. 

(141    Ind.    443;    40    N.    E.   1062), 

227,  228. 
Thornton  v.  Seaboard  Air  Line  Ry. 

(98  S.  C.  348;   82  S.  E.  433),  203, 

208. 
Tift  V.  Jones  (78  Ga.  700;    3  S.  E. 

399),  144. 
Tilley  v.  Hudson,  etc.,  Co.  (29  N.  Y. 

252;    86  Am.  Dec.  297;    24  N.  Y. 

471),  223,  241. 
Toledo,   etc.,   R.   Co.   v.   Cline    (135 

111.  41;  25  N.  E.  846;   31  111.  App. 

563),  153,  154,  155,  159,  161. 
Toledo,   etc.,   Ry.   Co.   v.   ISIcGinnis 

(71  lU.  346),  164. 
Toledo,   etc.,    Ry.    Co.   v.    O'Connor 

(77  111.  391),  164,  166. 
Toledo,  etc.,  Ry.  Co.  v.  Spencer  (66 

111.  528),  163. 
Toledo  R.  Co.  v.  Bartley  (172  Fed. 

82),  853. 
Toledo,  St.  L.  &  W.  R.  Co.  v.  Gordon 

(177  Fed.  152;    100  C.  C.  A.  572), 

477,  478,  484. 
Toledo,  St.  L.  &  W.  R.  Co.  v.  Slavin 

(236  U.  S.  457;    35  Sup.  Ct.  306; 

58  L.  Ed.  — ,  reversing  88  Ohio  St. 

536;     106   N.   E.    1077),   36,    297, 

310,  314,  322,  323. 
Tonsellito  v.  New  York  Cent.  & 

H.  R.  R.  Co.   (N.  J.)   (94  Atl. 

804),  96,  107,  212,  222,  319. 
Tralich  v.  Chicap;o,  M.  &  St.  P.  Ry. 

Co.  (217  Fed.  075),  74,  78,  82,  295. 


Tranham  v.  Charieston  &  W.  C.  Ry. 

Co.  (S.  C.)  (75  S.  E.  331),  .58. 
Transportation    Co.    v.    Parkersburg 

(107  U.  S.  691;    2  Sup.  Ct.  7.32; 

27  L.  Ed.  584),  30. 
Trott   V.    Birmingham   R.   Co.    (144 

Ala.  383;    39  So.  716),  302. 
Troxell  v.  Delaware,  L.  &  W.  R.  Co. 

(227  U.  S.  434;    33  Sup.  Ct.  274; 

57  L.  Ed.  274,  affii-ming  200  Fed. 

44;    118  C.  C.  A.  272),  214,  215. 
Troxler   v.    Southern   Ry.    Co.    (124 

N.  C.  191;    32  S.  E.  550;    44  L. 

R.  A.  312;    70  Am.  St.  580),  468, 

469,  470. 
Truesdell   v.   Chesapeake   &   R.   Co. 

(159    Ky.   718;     169    S.   W.   471), 

78,  100,  203,  204. 
Tsmura  v.  Great  Northern  Ry.  Co. 

(58  Wash.  316;  108  Pac.  774),  83, 

92,  296,  297,  299,  469. 
Tucker  v.  Central  Ry.  Co.  (122  Ga. 

387;   50  S.  E.  128),  147. 
TuUis    V.    Lake    Erie,    etc.,    R.    Co. 

(175  U.  S.  349;    20  Sup.  Ct.  136; 

44    L.    Ed.    192;     105    Fed.    554), 

12,  13,  10,  22. 
Turiey  v.  Atlanta,  etc.,  R.  Co.  (127 

Ga.  594;    56  S.  E.  748),  145. 
Turrettin  v.  Chicago,   St.  P.,  M.  & 

O.    R.    Co.    (95    Minn.    408;     104 

N.  W.  225),  469,  478,  483,  487. 
Tynan  v.  Walker  (35  Cal.  634;    95 

Am.   Dec.   152),  389. 


U 


Ulrich   V.    New   York,   etc.,    R.    Co. 

(193  Fed.  768),  288,  295,  304,  313. 
Union   Bridge   Co.    v.   United   States 

(201  U.  S.  364;    27  Sup.  Ct.  367), 

.332,  3.34. 
Union,  etc.,  Co.  v.  Kollaher  (12  111. 

App.  400),  154,  160,  160. 


TABLE    OF    CASES. 


Ixxiii 


[References  are  to  pages.] 


Union,    etc.,    Co.    v.    Monaghan    (13 

111.  App.  148),  155,  166. 
Union  Pacific  R.  Co.  v.  Brady  (161 

Fed.  719;    88  C.  C.  A.  579),  406, 

478,  479. 
Union   Pac.   R.    Co.    v.    Fuller    (204 

Fed.  45;    120  C.  C.  A.  359),  210. 
Union  Pac.  R.  Co.  v.  Roeser  (69  Neb. 

62;   95  N.  W.  68),  302. 
Union   Pac.    Ry.    Co.   v.    Rollins    (5 

Kans.  167),  133,  134. 
Union   Pac.   R.   Co.   v.   Wyler    (158 

U.  S.  285;  39  L.  Ed.  983;   15  Sup. 

Ct.  877),  216,  232,  233,  306,  309. 
Union    Ry.,    etc.,    Co.    v.    Shacklet 

(119  111.  232;    10  N.  E.  896),  303. 
Union   Stock   Yards   Co.    v.    United 

States  (169  Fed.  409),  59,  365. 
Union,  etc.,  Co.  v.  State  (100  Md.  634; 

60  Atl.  248),  302. 
United  States  v.  Atchison,  etc.,  Ry. 

Co.  (150  Fed.  442),  432,  439,  451. 
United  States  v.  Atchison,  T.  &  S. 

F.  Ry.  Co.  (Appendix  G),  392,  399, 

403, 404, 405, 407,  409, 444, 503,  843. 
United  States  v.  Atchison,  T.  &  S. 

F.  R.  Co.  (163  Fed.  517;   90  C.  C. 

A.  327),  421,  425,  426,  798,  803. 
United  States  v.  Atchison,  T.  &  S. 

F.  Ry.   Co.   (166  Fed.   160,   163), 

518,  534,  535. 
United  States  v.  Atchison,  T.  &  S. 

F.  R.  Co.  (167  Fed.  696;   Appendix 

G),  394,  401,  402,  407,  408,  416, 

421,  422,  440,  443,  444,  446,  448, 

449,  496,  728,  758,  762,  852. 
United  States  v.  Atchison,  T.  &  S. 

F.  Ry.  Co.   (212  Fed.   1000),  536, 

537,  538. 
United  States  v.  Atchison,  T.  &  S. 

F.    Ry.    Co.    (220  U.    S.   37;    31 

Sup.  Ct.  362;  55  L.  Ed.  — ,  affirm- 
ing 177  Fed.  114),  515,  530,  532, 

533,  908,  927,  931. 


United  States  v.  Atchison,  T.  &  S. 

F.   Ry.  Co.   (Kent's  Index-Digest, 

125),  883. 
United  States  v.  Atlantic  Coast  Line 

R.    Co.    (Appendix   G),   358,   399, 

414,  419,  421,  470,  493,  494,  500, 

801,  889,  924. 
United  States  v.  Atlantic  Coast  Line 

R.  Co.  (—  Fed.  77),  488. 
United  States  v.  Atlantic  Coast  Line 

R.  Co.   (153  Fed.  918),  334,  338, 

340,  400,  421,  448,  451,  472,  477, 

491,  493,  494,  495. 
United  States  v.  Atlantic  Coast  Line 

R.    Co.    (168    Fed.    175,    decided 

Feb.  24,  1909;    Appendix  G),  349. 
United  States  v.  Atlantic  Coast  Line 

R.  Co.  (173  Fed.  764;   98  C.  C.  A. 

110),  519,  534,  535,  540. 
United  States  v.  Atlantic  Coast  Line 

R.  Co.  (182  Fed.  284),  493,  499. 
United  States  v.  Atlantic  Coast  Line 

Ry.  Co.  (211  Fed.  897;    127  C.  C. 

A.   123),  340,  512,  531,  532,  533, 

539. 
United  States  v.  Atlantic  Coast  Line 

R.  Co.  (214  Fed.  498),  365. 
United  States  v.  Baltimore  &  O.  R. 

Co.  (Appendix  G),  334,  416,  421, 

444,  449,  455,  503,  786,  861. 
United  States  v.  Baltimore  &  O.  R. 

Co.  (26  App.  D.  C.  587,  851),  493, 

604. 
United    States    v.    Baltimore    &    0. 

Ry.  Co.  (170  Fed.  456;    Appendix 

G),  340,  354,  357,  401,  407,  421, 

422,  472,  477,  496,  827. 
United  States  v.  Baltimore  &  O.  R. 

Co.  (176  Fed.  114),  394,  461,  462, 

493,  496. 
United  States  v.  Baltimore  &  O.  R. 

Co.  (184  Fed.  94),  397,  414,  415, 

416,  502,  503. 


Ixxiv 


TABLE    OF    CASES. 


[References  are  to  pages. 


United  States  v.  Baltimore  &  O.  S. 

W.  R.  Co.  (159  Fed.  33,  38;    86 

C.  C.  A.  223),  493,  495,  503,  797, 

802,  809. 
United  States  v.  Baltimore,  etc.,  R. 

Co.  (Appendix  G),  422,  470. 
United    States    v.     Bell    Telephone 

Co.  (159  U.  S.  548;    16  Sup.  Ct. 

69;  40  L.  Ed.  225),  431. 
United  States  v.  Belt  Ry.  Co.   (168 

Fed.  542;    Appendix  G),  798,  802, 

821. 
United   States   v.   Boston   &   M.   R. 

Co.  (168  Fed.   148;    Appendix  G), 

334,  353,  394,  407,  414,  415,  416, 

452,  459,  495,  496,  502,  779. 
United  States  v.  Boyer  (85  Fed.  425), 

58. 

United  States  v.  Central  of  Ga.  Ry. 
Co.  (157  Fed.  616,  893),  57,  339, 
340,  349,  350,  364,  376,  392,  394, 
397,  405,  406,  407,  408,  410,  493, 
495,  496. 

United  States  v.  Central  Ry.  Co. 
(167  Fed.  893),  850. 

United  States  v.  Chesapeake  &  0. 
Ry.  Co.  (213  Fed.  748;  Appendix 
G),  365,  373,  399,  401,  407,  408, 

453,  459,  461,  470,  495,  768,  911. 
United  States  v.  Chicago  &  N.  W. 

Ry.  Co.  (157  Fed.  616;  reversed 
168  Fed.  236),  340,  351,  356,  357, 
373,  400,  414,  448,  452,  502,  850. 

United  States  v.  Chicago  &  N.  W. 
Ry.  Co.  (219  Fed.  342),  524,  528. 

United  States  v.  Chicago,  B.  &  Q. 
Ry.  Co.  (156  Fed.  180),  340,  451. 

United  States  v.  Chicago,  B.  &  Q. 
R.  Co.  (35  Sup.  Ct.  634,  affirming 
211  Fed.  12;  127  C.  C.  A.  438), 
353,  465. 

United  States  v.  Chicago,  etc.,  R. 
Co.  (Appendix  G),  470,  495. 


United  States  v.  Chicago,  etc.,  R. 
Co.  (81  Fed.  783),  378. 

United  States  v.  Chicago,  etc.,  R. 
Co.  (143  Fed.  353,  373),  352,  354, 
364,  365,  367,  412,  494. 

United  States  v.  Chicago,  etc.,  R. 
Co.  (163  Fed.  775),  421,  422,  440, 
500. 

United  States  v.  Chicago,  etc.,  R. 
Co.  (173  Fed.  684;  Appendix  G), 
394,  411,  495,  501. 

United  States  v.  Chicago,  etc.,  R. 
Co.  (156  Fed.  180,  182,  616; 
affirmed  170  Fed.  556;  95  C.  C.  A. 
42)  397,  399,  410,  422,  431,  435, 451. 

United  States  v.  Chicago  Great 
Western  Ry.  Co.  (162  Fed.  775;  Ap- 
pendix G),  334,  340,  349,  353,  358, 
371,  373,  392,  393,  399,  407,  412, 
422,  443,  444,  446,  448,  449,  459, 
461,  470,  493,  495,  496,  497,  500, 
502,  797,  798,  801,  802. 

United  States  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.  (149  Fed.  486;  affirmed 
165  Fed.  423;  91  C.  C.  A.  373; 
Appendix  G),  57,  67,  333,  334,  337, 
339,  340,  349,  351,  352,  355,  357, 
358,  374,  380,  397,  401,  404,  405, 
406,  408,  412,  449,  451,  718,  850, 
851,  852,  887. 

United  States  v.  Chicago,  M.  &  P. 
S.  Ry.  Co.  (195  Fed.  783),  513,  517. 

United  States  v.  Chicago,  M.  P.  S. 
Ry.  Co.  (197  Fed.  624),  339,  340, 
350,  512,  517,  525,  529,  537,  951, 
953,  954. 

United  States  v.  Chicago,  M.  &  P. 
S.  Ry.  Co.  (219  Fed.  632,  1011), 
530,  531. 

United  States  v.  Chicago  N.-W.  Ry. 
Co.  (Appendix  G),  953. 

United  States  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.  (173  Fed.  684;  Appendix 
G),  41,  340,  411,  493,  495,  791. 


TABLE    OF    CASES. 


Ixxv 


[References  are  to  pages.] 


United   States   v.    Cincinnati,    H.   & 

D.  R.  Co.  (Appendix  G),  760. 
United  States  v.  Cleveland,  C.  C.  & 

St.  L.  Ry.  Co.   (unreported),  541. 
United   States  v.   Colorado  Midland 

Ry.   Co.    (202   Fed.    732;     121   C. 

C.  A.  194),  453,  454. 
United  States  v.  Colorado  &  N.  W. 

R.  Co.  (209  U.  S.  544;    157  Fed. 

321,  342;   85  C.  C.  A.  27),  57,  58, 

334,  337,  340,  347,  349,  350,  351, 

354,  364,  380,  391,  573,  595,  720, 

721,  738. 
United    States    v.    Cook    (17    Wall. 

168;   21  L.  Ed.  538),  400. 
United   States   v.   DeGoer   (38   Fed. 

80),  575,  597. 
United  States  v.  Delaware,  L.  &  W. 

R.  Co.  (152  Fed.  269),  59. 
United   States   v.   Denver   &   R.   G. 

Co.   (163  Fed.  519;    90  C.  C.  A. 

329),  364,  400,  401,  402,. 404,  406, 

407,  408,  425,  455,  470,  493,  494, 

798,  803. 
United  States  v.  Denver  &  R.  G.  R. 

Co.  (197  Fed.  629),  339,  517,  522, 

523,  529,  538. 
United  States  v.  Denver  &  R.  G.  R. 

Co.  (220  Fed.  293),  534. 
United  States  v.  Dixon  (15  Pet.  141), 

400. 
United  States  v.  El  Paso  &  S.  W.  R. 

Co.    (Appendix    G.      Two    cases), 

339, 351, 401, 404, 405, 408, 703, 708. 
United  States  v.  Erie  R.  Co.  (35  Sup. 

Ct.   621,   reversing   212   Fed.   853; 

129  C.  C.  A.  307,    on  first  appeal 

197  Fed.  287;    116  C.  C.  A.  649), 

351,  352,  353,  364,  365,  366,  370, 

459,  462,  465,  466. 
United   States   v.   Erie   R.   Co.    (166 

Fed.  352),  58,  340,  349,  355,  358 

371,  405,  419,  421,  422,  425,  601, 

859. 


United  States  v.  Fox  (94  U.  S.  315; 

24  L.  Ed.  192),  225. 
United    States   v.    Galveston,    H.    & 

S.   A.   Ry.   Co.   (unreported),   537, 

538. 
United  States  v.  Garbish  (222  U.  S. 

261),  921. 
United  States  v.   Geddes   (Appendix 

G),  340. 
United   States  v.   Geddes   (131   Fed. 

452;    65  C.  C.  A.  320),  349,  378, 

381,    737. 
United   States  v.   Geddes   (180  Fed. 

480),  378,  391. 
United   States   v.    Grand   Trunk    R. 

Co.  (203  Fed.  775),  353,  365,  422, 

426,  466. 
United    States    v.    Great    Northern 

Ry.  Co.  (145  Fed.  438),  334,  338, 

351,  358,  369,  399. 
United  States  v.  Great  Northern  Ry. 

Co.  (150  Fed.  229),  339,  402,  404, 

408,  421,  432,  439,  451. 
United  States  v.  Great  Northern  Ry. 

Co.  (206  Fed.  838),  512,  514,  526, 

527,  936,  939. 
United  States  v.  Great  Western  Ry. 

Co.   (162  Fed.  775),  349. 
United     States     v.     Great     Western 

Ry.  Co.  (174  Fed.  399),  419. 
United  States  v.  Houston,  B.  &  T. 

Ry.  Co.  (205  Fed.  344),  494,  516, 

531,  533,  539. 
United  States  v.  Illinois  Central  R. 

Co.  (170  Fed.  542;    166  Fed.  997; 

95  C.  C.  A.  628,  reversing  156  Fed. 

182;     certiorari   denied    214   U.    S. 

520;   Appendix   G),   67,   339,   340, 

372,  392,  393,  394,  397,  399,  401, 

402,  403,  410,  414,  415,  419,  421, 

422,  426,  435,  439,  445,  452,  492, 

493,  494,  495,  497,  503,  504,  805, 

853. 


Ixxvi 


TABLE    OF    CASES. 


[References  are  to  pages. 


United  States  v.  Illinois  Central  R-. 

Co.  (177  Fed.  801;    101  C.  C.  A. 

15),  41,  333,  340,  402,  406,  426. 
United  States  v.  Illinois  Central  R. 

Co.  (180  Fed.  630),  506,  517,  522, 

523. 
United  States  v.  Indiana,  etc.,  R.  Co. 

(156  Fed.  565),  431. 
United    States    v.    Indiana    Harbor 

R.  Co.   (157  Fed.  565),  402,  404, 

419,  422. 
United    States    v.    International    & 

G.  N.  R.  Co.   (174  Fed.  638;    98 

C.  C.  A.  392),  354,  357,  358,  361, 

370,  371,  372,  399,  400,  859. 
United  States  v.  Kansas  City  Southern 

Ry.  Co.  (189  Fed.  471;    Appendix 

G),  419,  453,  494,  498,  512,  514, 

518,  522,  523,  524,  534,  537,  538, 

953,  955. 
United  States  v.  Kansas  City  Southern 

Ry.  Co.  (202  Fed.  828;    121  C.  C. 

A.    136;    Appendix   G),   392,   419, 

453,  494,  495,  498,  507,  512,  513, 

514,  523,  537,  538,  539,  541,  921, 

953,  955. 
United    States    v.    Ku-by    (7    Wall. 

482),  816. 
United  States  v.  Lacher  (134  U.  S. 

629;    10  Sup.  Ct.  625;    33  L.  Ed. 

1080),  431. 
United   States   v.   Lehigh   Valley   R. 

Co.  (Appendix  G),  407,  801. 
United   States  v.   Lehigh  Valley   R. 

Co.  (115  Fed.  373),  58,  355. 
United   States   v.   Lehigh   Valley   R. 

Co.  (160  Fed.  696;    Appendix  G), 

356,  369,  422,  495,  740,  797. 
United   States   v.   Lehigh   Valley   R. 

Co.  (162  Fed.  410;    Appendix  G), 

356,  365,  .369,  392,  394,  401,  408, 

425,  470,  740,  852. 
United   States   v.   Lehigh   Valley    R. 

Co.  (219  Fed.  .532),  .535,  541. 


United    States    v.    Louisville    &    N. 

R.  Co.  (Appendix  G),  809. 
United    States    v.    Louisville    &    N. 

R.  Co.   (1.56  Fed.   193,   195),  394, 

418,  426,  444,  445,  452. 
United  States  v.  Louisville  &  N.  Pi.. 

Co.  (162  Fed.  185),  356,  357,  370, 

392,  394,  399,  400,  401,  403,  405, 

406,  407,  470,  493,  495,  797,  802. 
United  States  v.  Louisville  &  N.  R. 

Co.  (167  Fed.  306),  493,  495,  498, 

503. 
United  States  v.  INIilwaukee  &  St.  P. 

Ry.  Co.  (212  Fed.  574),  537. 
United  States  v.  Minneapolis,  St.  P. 

&  S.  S.  M.  Ry.  Co.  (unreported), 

541. 
United  States  v.  Missouri,  K.  &  T. 

Ry.  Co.  (208  Fed.  957),  512,  530, 

532,  533. 
United  States  v.  Missouri,  K.  &  T. 

Ry.  Co.  (unreported;   affirmed  231 

U.  S.  112;    34  Sup.  Ct.  26;    58  L. 

Ed.  — )  537,  538. 
United    States    v.    Missouri    Pacific 

Ry.  Co.  (unreported),  531. 
United    States    v.    Missouri    Pacific 

Ry.  Co.  (206  Fed.  847),  512,  515, 

526,  527. 
United  States  v.  Missouri  Pacific  Ry. 

Co.  (213  Fed.  169),  534. 
United   States   v.   Montpelier  &   W. 

R.    R.    Co.    (175   Fed.   874),   392, 

403,  494,  495. 
United  States  v.  Moore  (95  U.  S.  763), 

940. 
United  States  v.  Morsraan  (42  Fed. 

448),  363. 
United    States    v.    Nevada    County 

Narrow  Gauge  Co.  (167  Fed.  695; 

Appendix  G),  394,  401,  402,  404, 

405,  407,  408,  411,  470,  493,  495, 

490,  706,  803. 


TABLE    OF    CASES. 


Ixxvii 


[References  are  to  pages.] 


United  States  v.  Nev/  York  Central 

&  H.  R.  R.  Co.   (205  Fed.  42S), 

365. 
United  States  v.   Norfolk  &  W.   R. 

Co.  (184  Fed.  99),  397,  416,  503. 
United    States    v.    Northern    Pacific 

Co.  (Appendix  G),  529,  537,  893, 

940,  950. 
United    States    v.    Northern    Pacific 

T.  Co.  (144  Fed.  861),  59,  352,  354, 

357,  364,  365,  367,  370,  376,  399, 
400,  431. 

United    States    v.    Northern    Pacific 

Ry.  Co.  (213  Fed.  539),  340,  444, 

528,  538,  953,  955. 
United    States    v.    Northern    Pacific 

R.  Co.  (215  Fed.  64),  524,  535,  537. 
United  States  v.  Oregon  Short  Line 

R.  Co.  (180  Fed.  483),  422,  495. 
United    States   v.    Oregon-W.    R.    & 

N.  Co.  (213  Fed.  688),  513,  539. 
United    States   v.    Oregon-W.    R.    & 

Nav.  Co.  (218  Fed.  925),  513. 
United  States  v.   Pacific   Coast  Ry. 

Co.    (173   Fed.   453;    affirmed   173 

Fed.  448;    Appendix  G),  58,  351, 

358,  497,  714. 

United  States  v.  Pacific  Ry.  Co. 
(Appendix  G),  380. 

United  States  v.  Pennsylvania  R. 
Co.  (162  Fed.  408;  Appendix  G), 
335,  356,  365,  369,  392,  394,  401, 

407,  408,  422,  470,  495,  750,  840. 
United  States  v.  Pere  IMarquette  R. 

Co.  (211  Fed.  220),  340,  353,  365, 
367,  373,  421,  422,  426,  466. 
United  States  v.  Philadelphia  &  R. 
Ry.  Co.  (160  Fed.  696;  162  Fed.  403, 
405,  408;  Appendix  G),  356,  364, 
365,  369,  392,  394,  401,  402,  407, 

408,  422,  425,  426,  470,  493,  495, 
744,  797,  798,  801,  803,  823,  852. 

United  States  v.  Philadelphia  &  R. 
Ry.  Co.  (223  Fed.  215),  397,  407. 


United  States  v.  Pittsburgh,  C.  C.  & 

St.    L.    Ry.   Co.    (143    Fed.   300), 

59,  355,  364,  365,  431. 
United  States  v.  Ramsey   (197  Fed. 

144;    116  C.  C.  A.  568),  345,  515. 
United    States    v.    Riley    (104    Fed. 

275),  575,  597. 
United    States    v.    Rio    Grande    W. 

Ry.  Co.  (174  Fed.  399),  402,  443, 

444,  497. 
United  States  v.  Sheridan-Kirk  Con- 
tract Co.  (149  Fed.  809),  922. 
United  States  v.  Southern  Pac.  Co. 

(Appendix  G),  352,  371,  373,  407, 

449,  918. 
United  States  v.  Southern  Pac.  Co. 

(145  Fed.  438),  850. 
United    States    v.    Southern    Pacific 

Ry.  Co.  (135  Fed.  122;  94  C.  C.  A. 

629),  431. 
United    States    v.    Southern    Pacific 

Co.  (157  Fed.  459),  518,  523,  534, 

538. 
United  States  v.  Southern  Pac.  Co. 

(154  Fed.  897),  333,  364,  367,  421, 

432,  443,  444,  448,  449,  451. 
United    States    v.    Southern    Pacific 

Co.   (167  Fed.  699;    Appendix  G), 

356,  364,  365,  373,  374,  392,  397, 

401,  402,  404,  406,  407,  408,  412, 

426,  440,  443,  444,  446,  448,  449, 

495,  496,  772,  852. 
United    States    v.    Southern    Pacific 

(169  Fed.  407;    94  C.  C.  A.  629), 

352,  357,  373,  374,  421,  422,  425, 

426,  443. 
United  States  v.  Southern  Pacific  Co. 

(177  Fed.  796),  373. 
United  States  v.  Southern  Pac.  Co. 

(209  Fed.  562;    126  C.  C.  A.  384), 

512,  534,  537,  538,  956. 
United  States  v.  Southern  Pac.  Co. 

(220  Fed.  745),  534,  535,  538. 


Ixxviii 


TABLE    OF    CASES. 


[References  are  to  pages. 


United  States  v.   Southern  Ry.   Co. 

(105  Fed.  122),  352. 
United   States  v.   Southern  Ry.   Co. 

(Appendix  G),  334,  373,  399,  796, 

956. 
United  States  v.   Southern  Ry.   Co. 

(135  Fed.  122),  333,  339,  340,  349, 

355,  364,  401,  408,  411,  421,  439, 

451,  493. 
United  States  v.  Southern  Ry.   Co. 

(164  Fed.  347;   affirmed  222  U.  S. 

20;   32  Sup.  Ct.  2;   56  L.  Ed.  — ), 

337,  338,  347,  358,  359,  399,  851. 
United    States   v.    Southern   R.    Co. 

(167  Fed.  198,  699;   Appendix  G), 

355,  402,  414,  421,  422,  470,  493. 
United  States  v.   Southern  Ry.   Co- 

(170   Fed.    1014),    340,    357,    392, 

394,  397,  399,  400,  401,  402,  403, 

407,  421,  422,  495,  496. 
United  States  v.   Southern  Ry.   Co. 

(Kent's  Index-Digest,  125),  883. 
United  States  v.  Spokane  &  I.  E.  R,. 

Co.  (unreported),  416. 
United   States   v.   Spokane   &   I.   E. 

R.  Co.   (206  Fed.  988),  353,  356, 

370,  503. 
United  States  v.  St.  Louis,  I.  M.  &  S. 

Ry.  Co.  (154  Fed.  516),  353,  357, 

369,  370,  376,  397,  399,  432,  443, 

444,  850,  852. 
United  States  v.  St.  Louis  S.  W.  Ry. 

Co.  (189  Fed.  28,  954;  106  C.  C.  A. 

230),  340,  353,  397,  493,  500,  508, 

514,  532,  533,  539. 
United   States   v.    St.    Louis    S.    W. 

Ry.  Co.  (Appendix  G),  334,  370. 
United   States   v.   Standard   Oil   Co. 

(155  Fed.  305),  58. 
United  States  v.  Stowell   (133  U.  S. 

1 ;   10  Sup.  Ct.  244;  33  L.  Ed.  555), 

393. 


United  States  v.  Terminal  R.  Assn. 

(see  Appendix  G),  340,  394,  414, 

455,  470,  754. 
United    States    v.    Toledo    Terminal 

R.  Co.  (unreported),  373,  404,  407. 
United     States     v.     Trans-Missouri 

Freight  Assn.  (116  U.  S.  290,  370), 

940. 
United  States  v.  Trinity  &  B.  V.  Ry. 

Co.  (211  Fed.  448),  419,  421,  451, 

453,  454,  498. 
United   States   v.    Union   Pacific   R. 

Co.    (160  Fed.   65;    95  C.   C.  A. 

433),  518,  534. 
United  States  v.  Union  Stock  Yards 

(161  Fed.  919;    affirmed  169  Fed. 

404),  345,  354,  367,  368. 
United  States  v.  Union  Stock  Yards 

&  T.  Co.  (192  Fed.  330),  364,  367, 

374. 
United    States    v.    Wabash    R.    Co. 

(168  Fed.   1;    172  Fed.  864;    Ap- 
pendix G),  407,  421,  495,  711,  819. 
United    States    v.    Wabash-Pittsburg 

Ter.  Ry.   Co.   (Appendix  G),  838. 
United   States   v.   Wabash  Terminal 

Ry.   Co.   (Appendix  G),  415,  452, 

503. 
United  States  v.  Western  &  A.  R.  Co. 

(184  Fed.  336),  350,  354,  361,  372. 
United     States     v.     WheeHng     (Ap- 
pendix G),  352. 
United  States  v.  Wheeling  &  L.  E. 

R.  Co.   (167   Fed.   198;    Appendix 

G),  334,  335,  338,  354,  357,  399, 

400,  425,  722,  797,  802,  859. 
United  States  v.  Wiltberger  (5  Wheat. 

76;  5  L.Ed.  37),  389. 

United   States   v.   Winona  &   St.   P. 

R.  Co.  (67  Fed.  948,  957;    15  C. 

C.  A.  96,  104),  284. 
United    States    v.    Wong    Kim    Ark 

(160  U.  S.  649),  812. 


TABLE    OF    CASES. 


Ixxix 


[References  are  to  pages.] 


United  States  v.  Yazoo  &  M.  V.  R. 

Co.  (.203  Fed.  159),  512,  513. 
United  States,  etc.,   Co.   v.  Sullivan 

(22  App.  Dec.   115),  226. 
Utah,    etc.,    Co.    v.    Diamond,    etc., 

Co.  (26  Utah,  299;    73  Pac.  524), 

247. 


Van    Amburg    v.     Vicksburg,     etc., 

R.  Co.  (37  La.  Ann.  651),  219. 
Van    Brimmer   v.    Texas   &    P.    Ry. 

Co.  (190  Fed.  394),  83,  92.  287. 
Vance  v.  Vance  (108  U.  S.  514,  521; 

2  Sup.  Ct.  854;    27  L.  Ed.  808), 

388. 
Vance    v.    Vandercook    (170    U.    S. 

438;    18  Sup.  Ct.  674;    42  L.  Ed. 

1100),  32. 
Vandalia   R.   Co.   v.   Holland   (Ind.) 

(108  N.  E.  580),  58,  98,  472. 
Vandalia  R.  Co.  v.  Stringer  (Ind.) 

(106  N.  E.  865),  35,  295,  318. 
Van  Doran  v.  Pennsylvania  R.  Co. 

(93  Fed.  266;  35  C.  C.  A.  282), 

233. 
Vanordstrand  v.  Northern  P.  Ry. 

Co.  (Wash.)  (151  Pac.  89),  290. 
Vaughan  v.  St.  Louis  &  S.  F.  R.  Co. 

(177  Mo.  App.  155;  164  S.  W.  144), 

35,  39,  96,  214,  215,  216. 
Vaux  V.  Salvador  (4  Ad.  &  El.  431), 

167. 
Vessel  Owners'  Towing  Co.  v.  Wil- 
son (63  Fed.  630;    24  U.  S.  App. 

49),  169. 
Vick  v.  New  York  Cent.,  etc.,  R.  Co. 

(95  N.  Y.  267;    47  Am.  Rep.  36), 

104. 
Vickery  v.  New  London  Northern  Ry. 

Co.  (87  Conn.  634;    89  Atl.  277), 

35,  39,  303,  307,  311,  312. 
Vicksburg,   etc.,    R.   Co.   v.   PhiUips 

(64  Miss.  693;  2  So.  537),  261. 
Vicksburg  R.  R.  Co.  v.  Putnam  (118 

U.  S.  545),  854. 


Victory,  The  (68  Fed.  400;  25  U.  S. 
App.  271),  169. 

Vindicator,  etc.,  Co.  v.  Firstbrook 
(36  Colo.  498;   80  Pac.  313),  14. 

Vinson  v.  Willingham  Cotton  Mills 
(2  Ga.  App.  53;  58  S.  E.  413),  145. 

Virginia  Ehrman,  The  (97  U.  S. 
309;   24  L.  Ed.  890),  168. 

Virginia  Ry.  Co.  v.  United  States 
(223  Fed.  748),  425,  466. 

Voelker  v.  Chicago,  M.  &  St.  P.  R. 
Co.  (116  Fed.  867;  affirmed  129 
Fed.  522;  65  C.  C.  A.  226;  70 
L.  R.  A.  264),  67,  340,  342,  350, 
354,  357,  366,  397,  399,  400,  401, 
402,  404,  412,  414,  432,  439,  458, 
467,  469,  472,  477,  486,  490,  850, 
853. 

Voight  v.  Baltimore  &  O.  South- 
western Ry.  (176  U.  S.  498),  567. 

Voris  v.  Chicago,  M.  &  St.  P.  Ry. 
Co.  (172  Mo.  App.  125;  157  S.  W. 
835),  107. 

Vreeland  v.  Michigan  Central  R. 
Co.  (189  Fed.  495;  reversed, 
227  U.  S.  59;  33  Sup.  Ct.  192; 
57  L.  Ed.  417),  245. 


W 


Wabash,    etc.,    R.    Co.    v.    Century 

Trust  Co.  (32  Alb.  L.  Jr.  96),  181. 
Wabash,    etc.,    R.    Co.    v.    Conkling 

(15  111.  App.  157),  11. 
Wabash,  etc.,  R.  Co.  v.  Moran  (13 

111.  App.  72),  155. 
Wabash  R.  Co.  v.  Hayes  (234  U.  S. 

86;    34  Sup.  Ct.  729;    58  L.  Ed. 

1226,  affirming  180  111.  App.  511), 

35,  51,  74,  292,  304,  307,  318,  324. 
Wabash  R.  Co.  v.  Illinois  (118  U.  S. 

557;   7  Sup.  Ct.  4;   30  L.  Ed.  244, 

reversing  105  111.  236),  32. 


Ixxx 


TABLE    OF    CASES. 


[References  are  to  pages.] 


Wabash  R.  Co.  v.  United  States  (168 

Fed.  1;   Appendix  G),  59,  121,  333, 

335,  337,  339,  340,  349,  351,  354, 

358,  365,  372,  373,  399,  400,  414, 

470,  493,  497,  498,  736,  851,  859, 

977. 
Wabash  R.  Co.  v.  United  States  (172 

Fed.  864;    97  C.  C.  A.  284),  397, 

422,  426. 
Wabash    Ry.    Co.    v.    Jones    (5    III. 

App.  607),  160. 
Wagner    v.    Chicago    &    A.    R.    Co. 

(265  111.  245;    106  N.  E.  809),  35, 

60,  61,  266,  267,  272. 
Walker  v.  Atlanta,  etc.,  R.  Co.    (103 

Ga.  826;  30  S.  E.  503),  143. 
Walker    v.    Georgia,    etc.,    Co.    (122 

Ga.  368;  50  S.  E.  121),  147. 
Wallace    v.    Connor    (38    Ga.    199), 

218. 
Walsh  V.  Lake  Shore  &  M.  S.  Ry.  Co. 

(Mich.)    (151   N.   W.   754),   203, 

208,  253,  255,  292. 
Walsh  V.  New  York,  N.  H.  &  H.  R. 

Co.   (173  Fed.  494),  22,  38,  217, 

219  250  597. 
Walsh  V.  'Whitely  (21  Q.  B.  Div. 

371),  600. 
Walton  V.  Bryn  Mawr  Hotel  Co. 

(160  Pa.  St.  3;  28  Atl.  438),  11. 
Walton  V.  Southern  R.  Co.  (179  Fed. 

175),  296,  297,  298,  299. 
Wanderer,  The   (21   Fed.   140),   107, 

171. 
Ward   V.   Milwaukee,   etc.,    Ry.   Co. 

(29  Wis.  144),  162. 
Warfield    v.    Sanburn    (9    Ga.    App. 

321;    71  S.  E.  703),  140. 
Warren  v.  Engleliart  (13  Neb.  283; 

13  N.  W.  401).  229. 
Washington,    The    (5    Jurist,   1067), 

167. 
Washington  &  G.  R.  Co.  v.  McDade 

(135  U.  S.  554;    34  L.   Ed.  235; 

10  Sup.  Ct.  1044),  291. 


Washington,    P.    &    C.    Ry.    Co.    v. 

Magruder    (198    Fed.    218),    523, 

537,  538. 
Washington  R.  Co.  v.  Huckey  (166 

U.  S.  521),  853. 
Washington  Ry.  Co.  v.  Downey  (40 

App.  D.  C.  147),  23,  50. 
Washington  Western  Ry.   (27  Inter- 
state Commerce  Commission  630), 

48. 
Watson    V.    Seaboard,    etc.,    R.    Co. 

(133  N.  C.  188;  45  S.  E.555),  245. 
Watson  V.  St.  Louis,  I.  M.  &  S.  Ry. 

Co.    (169  Fed.   942;   affirmed  32 

Sup.  Ct.  169),  4,  22,  112,  116,  120, 

335,  426. 
Watson's  Trial   (32  How.  St.  Tr. 

125),  880. 
Waymen  v.  Southard   (10  Wheat. 

1),  201. 
Weber  v.  Great  Northern  R.  Co. 

(125  Minn.  348;  147  N.  W.  427), 

253. 
Webster  v.  Atlantic,  etc.,  R.  Co. 

(81  S.  C.  46;  61  S.  E.  1080),  131. 
Webster   v.    Norwegian  Min.   Co. 

(137  Cal.  399;  70  Pac.  276),  302. 
Weir    V.    Rountree    (173    Fed.   776), 

491. 
Weldon  V.  Wisconsin  (91  U.  S.  275; 

23  L.  Ed.  347),  77. 
Welles    V.    Castles    (69    Mass.    325), 

519. 
Welton   V.   Missouri    (91   U.   S.   275, 

280;    23  L.  Ed.  347,  reversing  55 

Mo.  288),  125,  387. 
Wescott  V.  Central  Vt.  R.  Co.   (61 

Vt.  438,  638;    17  Atl.  745),  229, 

302. 
Western,  etc.,  R.  Co.  v.  Blooming- 
dale  (74  Ga.  604),  144. 
Western,    etc.,    R.    Co.    v.    Bradford 

(113  Ga.  276;   38  S.  E.  823),  145. 
Western,  etc.,   Ry.  Co.   v.   Ferguson 

(113  Ga.  708;   39  S.  E.  306),  140, 

145. 


TABLE    OF    CASES. 


Ixxxi 


[References  are  to  pages.] 


Western,    etc.,    R.   Co.    v.    Herndon 

(114  Ga.  168;    39  S.  E.  911),  142, 

145. 
Western,     etc.,     Ry.     Co.    v.     York 

(128  Ga.  687;    58  S.  E.  183),  140, 

146. 
Western  Gas  Co.  v.  Danner  (97  Fed. 

892),  880. 
Western  R.  Co.  v.  Russell  (144  Ala. 

142;    39  So.  311),  250,  251. 
Western  U.  T.  Co.  v.  Quinn  (56  111. 

319),  154. 
Western  Union  Tel.  Co.  v.  Pendleton 

(122  U.  S.  347;    7  Sup.  Ct.  1126; 

30  L.  Ed.  1187,  reversing  95  Ind. 

12;  48  Am.  Rep.  692),  32,  57. 
Whalen  v.  Gordon  (95  Fed.  314;    37 

C.  C.  A.  70),  306. 
Whalley   v.   Philadelphia   &   R.    Ry. 

Co.  (Pa.)  (93  Atl.  1016),  466. 
Wheeler  v.   Oak  Harbor  Head  Lin- 
ing &  Hoop   Co.    (126  Fed.   348; 

61  C.  C.  A.  250),  480. 
Wheeling     Terminal     Ry.     Co.     v. 

Russell  (209  Fed.  795;    126  C.  C. 

A.  519),  96,  315,  316,  350,  394,  496. 
Whirley  v.  Whiteman  (1  Head,  610), 

147,  175. 
White   V.   Central   Vt.    Ry.    Co.    (87 

Vt.    330;     89    Atl.    618;     affirmed 

35  Sup.  Ct.  865),  36,  243,  244,  255, 

297,  303,  312. 
White  V.  Hart  (13  Wall.   646),  584. 
White  V.  Missouri  P.  Ry.  Co.   (Mo. 

App.)  (178  S.  W.  83),  280. 
Whitford    v.    Panama    R.    Co.    (23 

N.  Y.  465),  217. 
WhitseU  V.  Railroad  Co.  (120  N.  C. 

557;  27  S.  E.  125),  467. 
Whittaker   v.    Illinois,    etc.,    R.    Co. 

(176  Fed.  130),  295,  296. 
Wight  V.   Michigan  Central   R.   Co. 

(161  Mich.  216;    126  N.  W.  414; 

17  Det.  Leg.  N.  289),  426. 


Wilcox  V.  Luco   (118  Cal.  642;    45 

Pac.  676;  .50  Pac.  758;  62  Am.  St. 

306;   45  L.  R.  A.  582),  279. 
Wilkins    v.    Grant     (118    Ga.    522; 

45  S.  E.  415),  145. 
Willard   v.    Swanson    (126    111.    381; 

18  N.  E.  548),  152,  1.59. 
Willett    V.    IlUnois    Central    R.    Co. 

(122  Minn.  513;    142  N.  W.  883), 

402,  406,  410,  412,  426. 
Willever  v.   Delaware,   L.   &  W.   R. 

Co.  (N.  J.)  (94  Atl.  595),  78,  97, 

102,  292. 
William  Cox,  The  (9  Fed.  672),  168. 
WilHam     Murtagh,     The     (17     Fed. 

259),  168. 
Williams'  Est.,  In  re  (130  Iowa,  553; 

107  N.  W.  608),  250. 
WiUis,  etc.,  Co.  v.  Grizzell  (198  lU. 

313;  65  N.  E.  74),  227. 
Wilson    V.    Blackbird,    etc.,    Co.    (2 

Pet.  245;  7  L.  Ed.  412),  30. 
Wilson  V.  Merry  (L.  R.  1  Sc.  &  Div. 

App.  Cas.  326;    19  L.  T.   (N.  S.) 

30),  11. 
Wilson  V.  United  States  (220  U.  S. 

614;    31  Sup.  Ct.  538;    55  L.  Ed. 

610),  511. 
Wiltsie  V.  Town  of  Linden  (77  Wis. 

152;   46  N.  W.  234),  229. 
Winchester    v.    Case     (5    111.     App. 

486),  160. 
Winfield  &  N.  Y.  Cent.  &  H.  R.  R. 

Co.  (153  N.  Y.  Supp.  499),  36. 
Winfree   v.   Northern   Pac.    Ry.   Co. 

(227  U.  S.  296;    33  Sup.  Ct.  273; 

57  L.  Ed.  518,  affirming  173  Fed. 

65),  41,  314,  230. 
Winkler    v.    Philadelphia,    etc.,     R. 

Co.    (4  Penn.    (Del.)   80;    53  Atl. 

90;    affirmed  4  Penn.   (Del.)   387; 

56  Atl.    112),   68,   356,   371,   396, 

397,  401,  467,  472,  473,  477. 


Ixxxii 


TABLE    OF   CASES. 


[References  are  to  pages.] 


Winters  v.  Minneapolis  &  St.  L.  Ry. 

Co.   (126  Minn.  260;    148  N.  W. 

106),  100,  294. 
Wisconsin  v.  Chicago,  M.  &  St.  P. 

Ry.  Co.  (117  N.  W.  686),  572,  595. 
Wm.  Johnson  &  Co.  v.  Johnson  (86 

Fed.  888),   168. 
Woodward  v.  Chicago,  etc.,  R.  Co- 

(23  Wis.  400),  229,  234. 
Worden  v.   Humeston,   etc.,   R.   Co* 

(72  Iowa,  201;  33  N.  W.  629),  219- 
World's     Columbian     Exposition     v. 

Bell  (76  lU.  App.  591),  11. 
Wright  V.  Chicago,  R.  I.  &  P.  R.  Co. 

(94  Neb.  317;  143  N.  W.  220),  106. 
Wright  V.   Yazoo   &   M.  V.   R.   Co. 

(197  Fed.  94),  200,  208,  209. 
Wrightsville  &  T.  R.  Co.  v.  Tomp- 
kins (9  Ga.  App.   154;    70  S.  E. 

955),  140. 
Wrightsville,    etc.,    Co.    v.    Gornite 

(129  Ga.  204;    58  S.  E.  769),  144, 

145,  147. 
Wrightsville,   etc.,   R.   Co.   v.   Latti- 

more    (118    Ga.    581;     45    S.    E. 

453),  145. 
Wyatt  v.  WiUiams  (43  N.  H.  102), 

217. 


Yarmouth  v.  France  (19  Q.  B.  Div. 

659),  601. 
Yazoo  &  M.  R.  Co.  v.  Wright  (207 

Fed.  281;  125  C.  C.  A.  25),  210, 

258 
Yazoo  &  M.  V.  R.  Co.  v.  Wright 

(235  U.  S.  376;  35  Sup.  Ct.  130), 

324. 
Yelton  V.  Evansville,  etc.,  R.  Co. 

(134  Ind.  414;  33  N.  E.  629),  274. 
York  V.  St.  Louis,  I.  M.  &  S.  R. 

Co.  (86  Ark.  244;  110  S.  W.  803), 

469,  472,  478,  483,  487. 
Yost  v.  Union  Pac.  R.  Co.  (245  Mo. 

219;  149  S.  W.  577),  37,  38,  407. 
Youge  V.  Kinney  (28  Ga.  Ill),  142, 

144,  146. 


Zachary   v.   North   Carolina   R.   Co. 

(156  N.   C.   496;    72  S.  E.  858), 

91,  179. 
Zeratsky   v.   Chicago,   M.   &   St.   P. 

Ry.   Co.    (141   Wis.  423;    123  N. 

W.  904),  175,  177,  179,  182,  189. 
Zikos  V.  Oregon  R.  &  N.  Co.   (179 

Fed.  893),  4,  22,  23,  37,  78,  82,  92, 

112,  116,  121,  218,  272,  277,  278, 

281. 
Zucker  v.  United  States  (161  U.  S. 

475),  810. 


PART  I. 
Federal  Employers'  Liability  Act 


Federal    Employers'    Liability  and 
Safety  Appliance  Acts 


CHAPTER    I. 


ABOLITION  OF  FELLOW  SERVANT  RULE. 

SECTION.  SECTION. 

1.     Object  and  purpose  of  Act  of       2.     Rule  of  fellow  servant  in  Eu- 
of   1908.  ropean  countries. 

3.     Quebec  and  Mexico. 

§  1.  Object  and  Purpose  of  Act  of  1908.— On  the  floor  of 
the  Senate,  Senator  Doliver  thus  explained  the  object  and 
purpose  of  the  Act  of  1908 : 

"First,  it  modifies  the  old  law  of  the  negligence  of  co- 
employes.  The  old  law,  which  took  root  in  the  United 
States  two  generations  ago,  was  to  the  effect  that  an  em- 
ploye injured  by  the  negligence  of  a  fellow  workman  could 
not  recover.  *  *  *  The  proposition  was  that  an  employe 
injured  by  the  negligence  of  a  fellow  servant  could  not  re- 
cover. This  bill  abolishes  that  doctrine,  and  gives  the  em- 
ploye the  right  to  recover  for  injuries  arising  from  the 
negligence  of  his  fellow  w^orkmen.  That  is  the  first  proposi- 
tion. 

The  second  proposition  modifies  the  law  whereby  in  other 
generations  workmen  were  held  by  the  court  to  assume 
the  risks  arising  from  defective  machinery.     That  was  an 


2  FEDERAL   EMPLOYERS'   LIABILITY    ACT. 

inheritance,  I  reckon,  of  the  common  law,  and  at  the  time 
the  courts  originally  established  the  doctrine,  it  had  some 
sense  in  it  and  a  little  justice.  There  was  some  reason  why 
a  man  working  with  simple  machinery  should  look  to  it  that 
the  machinery  with  M^hich  he  worked  was  in  good  order. 
But  the  doctrine  is  obsolete  as  applied  to  the  present  day 
occupations  of  those  workmen  who  were  employed  by  the 
common  carriers  of  the  world.  It  would  require  a  brake- 
man  to  know  all  about  the  machinery  of  a  freight  train, 
though  it  may  be  half  a  mile  long,  as  he  goes  out  upon  his 
day's  work.  Everybody  with  a  moderate  sense  of  justice 
must  see  that  the  common  law  applicable  to  the  assumption 
of  risks  for  deficient  machinery  has  no  rational  application 
to  the  complex  industrial  concerns  of  our  o\\ti  time. 

In  the  third  place,  this  proposed  statute  modifies  radically 
the  law  of  contributory  negligence.  As  administered  by  our 
courts,  it  has  been  uniformly  held  that  an  employe  suffering 
an  injury  to  which  his  own  negligence  contributed,  cannot, 
by  reason  of  that  participation  in  the  injury,  have  any  re- 
covery at  law.  The  proposed  statute  liberalizes  the  doctrine 
of  the  law.  It  is  based  upon  the  theory  that  where  an  injury 
occurs  partly  by  reason  of  the  negligence  of  the  employer 
and  partly  by  reason  of  the  negligence  of  an  employe,  the 
jury  ought  to  determine  what  portion  of  the  injury  arises 
from  the  negligence  of  the  plaintiff,  and  take  away  from 
the  sum  total  of  his  damage  allowed  that  part  which  can 
properly  be  apportioned  to  his  own  negligence.  That  prin- 
ciple has  been  called  in  some  of  the  books  the  doctrine  of 
comparative  negligence. 

In  the  fourth  place,  the  proposed  bill  undertakes  to  mod- 
ify somewhat  the  common  law  applicable  to  certain  agree- 
ments or  contracts  made  between  employers  and  their 
workmen,  in  which  the  latter  agree,  in  consideration  of  some 
form  of  insurance  or  indemnity  fund,  to  give  up  the  right 
to  sue  in  the  courts.  It  has  been  held,  as  a  matter  of  public 
policy,  that  a  workman  cannot  contract  himself  out  of  his 
right  or  the  rights  of  his  legal  representatives  to  recover 


ABOLITION    OF    FELLOW    SERVANT   RULE.  3 

for  damages.  That  is  to  say,  the  courts  have  held  that  it  is 
against  public  policy  to  sustain  a  contract  by  which  a  work- 
man, merely  by  consideration  of  his  wages  and  his  employ- 
ment, agrees  to  withhold  any  claims  for  damages  iu  case  of 
his  injury.  But  many  insurance  societies  have  grown  up 
in  connection  with  the  protection  of  our  railways,  which  not 
only  undertake  to  pay  a  man  for  damages  arising  out  of 
injuries,  but  have  also  certain  other  features  in  the  nature 
of  sick  benefits  and  other  insurance.  They  have  been  re- 
garded by  the  courts  as  valid  and  binding  agreements.  This 
proposed  law  means  simply  that  where  a  workman  sues  for 
injury  for  which  he  is  entitled  to  recover,  he  shall  not  have 
his  recovery  defeated  by  reason  of  one  of  these  insurance 
agreements;  but  it  also  says  that  in  case  the  railway  has  con- 
tributed anything  to  the  insurance  fund  which  he  has  en- 
joyed, the  amount  that  the  railway  has  contributed  shall 
be  deducted  in  the  calculation  of  the  damages  which  he  is 
entitled  to  recover. 

These  are  the  four  propositions  (contained  in  this  bill,  and 
I  have  an  idea  that  there  is  not  a  member  of  tile  Senate  who 
does  not  recognize  the  equity  and  justice  involved  in  all 
four  of  them. 

The  fact  is,  we  have  been  at  least  a  generation  behind 
the  whole  world  in  the  adoption  of  the  doctrines  and  prin- 
ciples to  which  I  have  referred.  Outside  of  England,  there 
has  not  in  modern  times  been  a  country  in  Europe  that  does 
not  now  give  its  workmen  all  the  advantages  that  are  pro- 
vided by  this  bill.  There  is  hardly  an  American  state  in 
these  recent  years  w'hich  has  not  taken  this  step  forward  in 
industrial  justice. 

The  codes  of  nearly  all  the  countries  in  Europe  were  de- 
rived, directly  or  indirectly,  from  the  civil  law,  and  wherever 
the  civil  law  crossed  the  water,  these  doctrines  which  we 
are  introducing  into  the  United  States  Courts  in  this  bill 
have  found  acceptance.  This  is  so  in  the  courts  of  Quebec, 
he  recent  English  compensation  acts  illustrate  the  pres- 
ent day  reaction  against  the  severity  of  the  common  law.    The 


4  FEDERAL    EMPLOYERS      LIABILITY    ACT. 

fact  is  that  every  country  in  the  world  has  been  engaged 
in  the  careful  study  of  the  relations  of  its  working  millions 
to  its  prosperity,  and  to  its  civilization,  and  this  bill  pro- 
poses to  do  for  workmen  seeking  the  protection  of  the 
courts  of  the  United  States,  what  the  enlightened  juris- 
prudence of  all  the  modern  nations  has  already  done  for 
their  workmen  under  similar  conditions."^ 


§  2.  Rule  of  fellow  servant  in  European  countries.— The 
rule  of  the  common  law  respecting  the  liability  of  the  mas- 
ter to  his  servant  for  damages  occasioned  by  an  injury 
inflicted  by  the  negligent  act  of  his  fellow  servant,  does  not 
obtain  in  any  European  countries  having  the  Civil  Law  for 


^60  Cong.  Record.  1st  Sess.,  p. 
4527.  "The  passage  of  the  original 
act  and  the  perfection  thereof  by 
the  ajnendments  herein  proposed, 
stand  forth  as  a  declaration  of 
public  policy  to  change  radically, 
as  far  as  congressional  power  can 
extend,  those  rules  of  the  common 
law  which  the  president,  in  a  re- 
cent speech  at  Chicago,  character- 
ized as  'unjust.'  President  Tait, 
in  his  address  at  Chicago,  Septem- 
ber 16,  1909,  referred  'to  the  con- 
tinuance of  unjust  rules  of  law 
exempting  employers  from  liability 
for  accidents.'  The  public  policy 
which  we  now  declare  is  based  upon 
the  failure  of  the  common  law  to 
meet  the  modern  industrial  condi- 
tions, and  is  based  not  alone  upon 
the  failure  of  those  who  are  in  the 
United  States,  but  their  failure  in 
other  countries  as  well.  Mr.  As- 
quitli,  present  Prime  Minister  of 
England,  said  that  it  was  'revolt- 
ing to  sentiment  and  judgment  that 
men  who  met  with  accidents 
through  the  necessary  exigencies  of 
daily  occupation,  should  be  a 
charge  Ufxjn  tlieir  own  families.' " 
Senate  Report  432,  Gist  Congress, 
2d  Sess.,   March   22,    1910.    p.   2. 

"The  primary  object  of  the  act 
was  to  promote  the  safety  of  em- 


ployes of  railroads  while  actively 
engaged  in  the  movement  of  inter- 
state commerce,  and  is  well  calcu- 
lated to  subserve  the  interests  of 
such  commerce  by  affording  suc^i 
protection;  there  being,  as  it  seems, 
a  substantial  connection  between 
the  object  sought  to  be  attained  by 
the  act  and  the  means  provided  to 
accomplish  that  object."  St.  Louis, 
I.  ]VL  &  S.  Ry.  Oo.  V.  Conley,  187 
Fed.  949.  See  also  Fulgham  v. 
Midland  Valley  R.  Co.,  167  Fed. 
060;  Zikos  v.  Oregon  R.  &  N.  Co., 
179  Fed.  893,  and  Watson  v.  St 
Louis,  I.  M.  &  S.  Ry.  Co.,  169 
Fed.   942. 

That  the  rule  concerning  the  negli- 
gence of  fellow  servants  has  been 
abolished,  see  Devine  v.  Chicago  R. 
L  &  P.  Ry.  Co.,  265  111.  641;  107  N. 
E.  595. 

Seaboard  Airhne  R.  Co.  v.  Hor- 
ton,  233  U.  S.  452;  34  Sup.  Ct.  635; 
58  L.  Ed.  1062,  reversing  162  N.  C. 
424;  78  S.  E.  494. 

Louisville  &  N.  R.  Co.  v.  Strange, 
156  Ky.  439;  161  S.  W.  239;  Bowers 
V.  Southern  Rv.  Co.,  10  Ga.  App.  367; 
73  S.  E.  677;  Hardwick  v.  Wabash  R. 
Co.,  181  Mo.  App.  156:  168  S.  W.  328. 

It  was  evidently  not  the  purposes 
of  Congress  to  prevent  negligence  on 
the  part  of  interstate  employes;  for  if 
that  had  been  the  purpose  it  would 


ABOLITION   OF   FELLOW    SERVANT   RULE. 


the  basis  of  their  own  laws.  The  Code  Napoleon  made  the 
employer  answerable  for  all  injuries  received  by  his  work- 
men,- and  this  code  is  still  in  force  in  Belgium  and  Holland. 
In  Italy  and  Switzerland,  the  doctrine  of  fellow  servant  does 
not  prevail.^  Nor  does  it  in  Germany  and  Austria,*  not  in 
the  latter  country  at  least  since  1869.^  In  1888,  England 
adopted  a  statute  which  abolished  the  rule  of  fellow  servant 
with  reference  to  the  operation  of  railroad  trains,  and  in 
1897  it  extended  the  law  so  as  to  apply  to  many  of  the 
hazardous  employments  of  that  country."  In  the  English 
Workman's  Compensatory  Act  of  1906,^  contributory  negli- 
gence does  not  defeat  the  workmen's  rights  to  recover  dam- 
ages, or  compensation,  but  "if  it  is  proved  that  the  injury 
to  the  workmen  is  attributable  to  the  serious  and  willful  mis- 
conduct of  that  workman,  any  compensation  claimed  in 
respect  of  that  injury  shall,  unless  the  injury  results  in  death 
or  serious  and  permanent  disability,  be  disallowed."^ 


have  provided  for  the  liability  of  an 
engineer  or  the  railroad  company  for 
an  injury  to  a  passenger  on  a  highway, 
struck  through  the  negligence  of  the 
interstate  employe.  Evidently  the 
purpose  of  the  Act  is  to  create  a  right 
of  action  against  a  railroad  company 
in  favor  of  an  employe  for  injuries 
sustained  by  him  while  engaged  in 
interstate  commerce. 

It  may  be  remarked  that  there  is, 
strictly  speaking,  no  Federal  law  of 
negligence,  the  Federal  courts  simply 
applying  the  law  of  negligence  as  a 
part  of  the  state  law  where  the  injury 
was  occasioned.  This  is  true  of  the 
doctrine  of  respondeat  superior.  It  is 
considered  that  this  act  for  the  first 
time  creates  a  substantive  right  in 
favor  of  one  party  against  another, 
based  on  the  proposition  that  there 
is  a  right  of  action. 

The  Supreme  Court  has  declared 
that  "The  obvious  purpose  of  Con- 
gress was  to  save  a  right  of  action  to 
certain  relatives  dependent  upon  an 
employe  wrongfully  injured,  for  the 
loss  and  damages  resulting  to  them 
financially  by  reason  of  the  wrongful 
death."  Michigan  Central  R.  Co.  v. 
Vreelend,  227  U.  S.  59;  33  Sup.  Ct. 


192;  57  L.  Ed.  192,  reversing  189 
Fed.  495. 

The  purpose  of  the  statute  is  not 
to  abridge,  but  to  enlarge  the  lia- 
bility of  interstate  carriers,  and  a  ser- 
vant engaged  in  interstate  commerce, 
who  is  injured,  may  recover  under  the 
common  law  where  the  facts  and  cir- 
cumstances would  entitle  him  to 
maintain  an  action  thereunder,  regard- 
less of  the  statute.  Grow  v.  Oregon 
Short  Line  R.  Co.,  44  Utah  — ;  138 
Pac.  398. 

"One  purpose  of  Congress  was  to 
adopt  a  uniform  rule  operating  alike 
on  all  employes  of  railroad  companies 
engaged  in  interstate  commerce." 
"It  was  desired  to  make  it  easier  for 
employes  to  recover  damages  for 
injuries  caused  by  negligence,  and  not 
to  impose  conditions  destructive,  not 
of  the  remedy,  but  of  the  right." 
Burnett  v.  Atlantic  Coast  Line  R. 
Co.,  163  N.  C.  186;  79  S.  E.  414. 

^Dalloz,   1841,   1st  partie,  p.  271. 

^  Law  Quarterly  Review,  184. 

*  9  Jurid.  Rev.,  p.  271. 

^  Cong.  Record,  60  Cong.  Record, 
1st  Sess.,  p.  4435. 

For  an  excellent  review  of  the  law  of 
negligence  as  applied  to  master  and 


6  FEDERAL   EMPLOYERS     LLLBILITY   ACT, 

§  3.  Quebec  and  Mexico. — The  doctrine  of  fellow  servant 
does  not  obtain  in  Quebec,  in  that  respect  following  the 
French  law  yet  there  in  force ;  ^  but  in  Ontario  and  the  re- 
mainder of  British  North  America,  the  rule  does  yet  ob- 
tain/°  In  a  case  brought  in  a  Circuit  Court  of  the  United 
States  to  recover  damages  for  an  injury  received  in  the 
Province  of  Quebec,  the  court  enforced  the  doctrine  concern- 
ing fellow  servant  that  prevails  in  that  province/^  In 
Mexico,  the  master  is  liable  to  his  servant  for  an  injury 
caused  bv  the  negligence  of  a  fellow  servant. ^- 


servant  in  Continental  countries,  and 
a  short  reviev/  of  the  Act  of  1908,  see 
the  address  of  Hon.  Addison  C.  Harris 
before  the  Indiana  State  Bar  Associ- 
ation, July  7,  1909,  published  in  the 
proceedings  of  that  Association  for  the 
year  1909.  See  also  the  report  of  the 
Committee  on  Jurisprudence  before 
the  same  Association  July  6,  1910, 
read  by  Mr.  Harris,  as  well  as  the 
discussion  following. 

*  See  Appendix  C. 

'  6  Edw.  VII,  cap.  58. 

*  See  Ruegg's  Employer's  Liability, 
338.  See  also  Thomas  v.  Quarter- 
main,  18  Q.  B.  Div.  693;  Griffiths  v. 
Dudley,  9  Q.  B.  Div.  357;  Stuart  v. 
Evans,  31  W.  R.  706. 

Referring  to  the  argument  in  favor 
of  the  fellow-servant  rule  as  declared 
by  the  courts  of  this  country  and 
England,  it  has  been  observed  by  an 
eminent  authority:  /'If,  in  countries 
where  the  doctrine  of  common  em- 
ployment has  been  more  or  less  cir- 
cumscribed, none  of  the  evil  results 
which  it  is  declared  to  have  obviated 
can  be  detected,  it  may  be  safely  con- 
cluded that  no  harm  would  have  been 
produced  if  the  doctrine  had  never 
been  applied,  and  that  no  harm  will 
result  if  it  should  be  entirely  abro- 
gated by  the  legislature — the  only 
authority  by  which  such  a  change  in 
the  law  can  now  be  affected."  La- 
batt,  Master  and  Servant,  2  vol.,  p. 
1325. 


9  Canadian  Pac.  Ry.  v.  Robin- 
son, 14  Can.  S.  C.  105,  115;  City 
Demolombe,  Vol.  31,  No.  368,  and 
Sourdiat,  Vol.  2,  No.  911.  See  Ful- 
ler V.  Grand  Trunk  Ry.  Co.,  1  Loap 
Cas.  L.  J.  68;  Bourdeau  v.  Grand 
Trunk  Ry.  Co.  2  Low  Cas.  L.  J. 
1&6,  and  Hall  v.  Canadian,  etc., 
Co.   2   Montreail    L.  N.   245. 

10  "According  to  the  French  law 
common  emplojinent  is  no  defense, 
and  does  not  exonerate  the  em- 
ployer from  liability  for  the  negli- 
gence of  a  servant  who  may  by 
his  negligence  have  caused  an  ac- 
cident from  whicli  another  servant 
has  suffered."  Asbestos,  etc.,  Co. 
V.  thirand,  30  Can.  S.  C.  285;  'ine 
Queen  v.  Grenicr,  30  Can.  S.  C. 
42;  The  Queen  v.  Filion,  24  Can. 
S.  C.  482,  affirming  4  Can.  Excli. 
134;  Belanger  v.  Riopel,  3-  Mon- 
treal S.  C.   198. 

11  Boston,  etc..  R.  Co.  v.  McDuf- 
fey,  25  C.  C.  A.  247;  51  U.  S. 
App.   Ill;    73  Fed.  Rep.  934. 

12  ;Mexican  Cent.  R.  Co.  v.  Knox, 
114  Fed.  Rep.  73;  52  C.  C.  A.  21; 
Mexican  Cent.  R.  Co.  v.  Sprague, 
114  Fed.  Rep.  544;  52  C.  C.  A. 
318.  See  also  Mexican  Cent.  R. 
Co.  v.  Glover,  107  Fed.  Rep.  356; 
46  C.  C.  A.  334. 


CHAPTER   11. 

CONSTITUTIONALITY  OF  STATUTE— EFFECT  ON 
STATE  LEGISLATION. 

CONSTITUTIONALITY. 


5. 


6. 


9. 


10. 


11. 


SECTION. 

12.  Constitutionality    of  Wiscon- 

sin and  Nebraska  statutes. 

13.  Invalidity   of   Act   of    1906. 

14.  Tlie  parts  of  the  Act  of  1906 

rendering  it  invalid. 

15.  Congress  can  only  legislate  con- 

cerning  interstate   commerce. 

16.  Inter  relation  of  interstate  and 

intrastate  commerce  as  effect- 
ing constitutionality  of  statute. 

17.  Effect  of  Act  of  1908  on  State 

legislation. 

18.  Effect  of  Act  of  1908  on  State 

legislation,  continued. 

19.  Result  of  decisions. 

20.  Effect     of     repeal     of     Federal 

statute. 

21.  Must  interstate  employee  bring 

his  action  on  the  statute? 

22.  Act  of  1906,  validity  in  District 

of  Columbia  and  Territories. 

23.  Construction  of  statute. 

24.  State  courts  must  follow  Federal 

court  decisions — appeal  25  in 
pari  materia  with  Safety  Ap- 
pliance Acts. 


§  4.    Power  of  Congress  to  increase  liabilities  of  master. — 

The  validity  of  statutes  increasing  or  changing  the  liability 
of  a  master  to  his  servant,  is  one  that  presents  itself  at  an 
early  stage  in  the  discussion  of  the  question  of  his  liability 
under  this  Federal  Employers'  Liability  Act.  This  question 
presents  itself  in  three  aspects: 

First — The  power  of  Congress  to  change  or  modify  the 
liability  at  common  law  of  a  master  to  his  servant,  concerning 
his  liability  for  the  negligence  of  his  fellow  servant. 

Second — The  power  of  Congress  to  enact  a  law  author- 

7 


SECTION. 

4.  Power  of  Congress  to  increase 
liabilities  of  master. 

Authorizing  a  recovery  for 
negligent  act  of  fellow  serv- 
ant. 

Basis  of  rule  of  master's  non- 
liability for  negligence  of 
a  fellow  servant. 

Validity  of  statute  allowing 
a  recovery  for  an  injury 
occasioned  by  a  fellow  serv- 
lajit's  negligence. 

Validity  of  statute  as  to  past 
contracts  of  employment. 

Limiting  statute  to  employees 
of  railroad  companies  — 
Fourteenth    Amendment. 

Validity  of  statute  classifying 
instrumentalities. 

Power  of  Congress  to  enact 
statute  of   1908. 


O  FEDERAL   EMPLOYERS     LIABILITY    ACT. 

izing  a  recovery  when  the  servant  has  been  guilty  of  negli- 
gence contributing  to  his  injury. 

Third — The  power  of  Congress  to  legislate  upon  any 
phase  of  the  relation  of  master  and  servant.  » 

§  5.  Authorizing  a  recovery  for  negligent  a,ct  of  fellow 
servant, — In  discussing  the  power  of  a  Legislature  to  change 
the  law  with  reference  to  the  liability  of  a  master  to  his 
servant — not  taking  into  consideration  that  Congress  must 
limit  the  scope  of  its  legislation  to  masters  and  servants  en- 
gaged in  interstate  commerce — decisions  of  state  courts  are 
by  analogy  available.  The  doctrine  that  a  master  is  not 
liable  to  his  servant  for  an  injury  inflicted  upon  him  by  the 
negligence  of  his  fellow  servant  is  a  rule  of  law  enunciated 
and  enforced  by  the  courts  without  any  legislative  sanction, 
adopted  by  them  from  a  supposed  or  assumed  public  policy. 
This  rule  was  announced  in  England  in  1837.^  in  South  Car- 
olina in  1838,^  in  Massachusetts  in  1842,^  and  in  Pennsyl- 
vania in  1854.*  In  Massachusetts,  the  conclusion  reached 
was  upon  what  had  been  decided  in  South  Carolina  and 
England.^ 

§  6.  Basis  of  rule  of  master's  non-liability  for  negligence 
of  fellow  servant. — In  South  Carolina,  the  basis  for  the  rule 
assumed  by  the  Supreme  Court,  holding  the  master  not 
liable  to  his  servant  for  injuries  inflicted  by  the  negligence 
of  his  fellow  servant,  is  that  the  injured  servant  had  entered 
into  a  joint  undertaking  with  his  fellow  with  a  common 
employer  or  ma.ster,  each  having  stipulated  for  the  per- 
formance of  his  several  part;  and  as  each  of  them  was  not 
liable  to  the  master  for  the  conduct  of  the  other,  conversely 
the  master  was  not  liable  to  one  for  the  conduct  of  the  other, 

'  Priestly  v.  Fowler,  .3  M.  «S;  W.  1.  *  Ryan  v.  C'umherland  Valley  R. 

^McMurray    v.    So.    Car.    R.    R.  R.  Co.  2.3  Pa.  St.  384. 

Co.     1     McMullen,    385;     36    Am.  "The   rule  was  adopted  in  New 

Dec.   208.  York  in  185 1.     Coon  v.  Utica,  etc., 

•Farwel!   v.  Bost^)n.  etc.,  R.  Co.  R.  Co.  5  N,  Y.  492, 
4  Mete.  40;   38  Am.  Dec.  339, 


CONSTITUTIONALITY   OP   STATUTE.  9 

but  was,  when  he  was  not  at  fault,  only  liable  to  his  servant 
for  his  wages." 

In  Massachusetts  the  question  was  put  upon  the  ground 
of  implied  contract, — that  the  contract  of  employment  im- 
plied upon  the  part  of  the  servant  that  he  assumed  all  risk 
arising  from  the  negligence  of  his  fellow;  and  this  exemp- 
tion was  declared  to  rest  upon  considerations  of  public  policy. 
"Where  several  persons,"  said  the  court,  "are  employed  in 
the  conduct  of  one  common  enterprise  or  undertaking,  and 
the  safety  of  each  depends  much  on  the  care  and  skill  with 
which  each  other  shall  perform  his  appropriate  duty,  each 
is  an  observer  of  the  conduct  of  the  others,  can  give  notice 
of  any  misconduct,  incapacity,  or  neglect  of  duty,  and  leave 
the  service,  if  the  common  employer  will  not  take  such  pre- 
cautions and  employ  such  agents  as  the  safety  of  the  whole 
party  may  require.  By  these  means  the  safety  of  each  will 
be  much  more  effectively  secured  than  could  be  done  by  a 
resort  to  the  common  employer  for  indemnity  in  ease  of  loss 
by  the  negligence  of  each  other."  Speaking  of  servants  em- 
ployed in  different  departments,  and  applying  the  rule  to 
them,  the  court  further  said:  "When  the  object  to  be  accom- 
plished is  one  and  the  same,  when  the  employers  are  the  same, 
and  the  several  persons  employed  derive  their  authority  and 
compensation  from  the  same  source,  it  would  be  extremely 
difficult  to  distinguish  what  constitutes  one  department  and 
what  a  distinct  department  of  duty.  It  would  vary  the  cir- 
cumstances of  each  case.''  The  master  is  not  exempt  from 
liability,  in  such  case,  because  the  servant  has  better  means 
of  providing  for  his  safety  when  he  is  employed  in  immediate 
connection  with  those  from  whose  negligence  he  might  suffer, 
but  because  the  implied  contract  of  the  master  does  not  ex- 
tend to  indemnify  the  servant  against  the  negligence  of  any 

"Murray   v.    So.    Car.   R.    Co.    1  tion    into   the   conditions    of   each 

McMuI.  385;   36  Am.  Dec.  268.  case,  and  award  or  withhold  dam- 

^  Was  not  this  language  prompt-  ages  as  the  facts  of  each  particu- 

ed    by    an    unwillingness    of    the  lar  case  would  demand  as  a  matter 

court   to   undertake   an    investiga-  of  justice  and  right? 


10  FEDERAL   EMPLOYERS'    LIABILITY   ACT, 

one  but  himself  ;^  and  he  is  not  liable  in  tort  as  for  the  negli- 
gence of  his  servant,  because  the  person  suffering  does  not 
stand  in  the  relation  of  a  stranger,  but  is  one  whose  rights 
lare  regulated  by  contract,  express  or  implied.""  In  Indiana, 
in  1855,  the  Supreme  Court  said:  "It  is  considered  that 
public  policy  requires  that  servants  engaged  in  common  em- 
ployment shall  not  have  an  action  against  their  principal  for 
injuries  resulting  from  the  negligence  of  one  or  more  of  such 
servants,  because  the  tendency  of  such  a  doctrine  is  to  make 
them  anxious  and  watchful  and  interested  for  the  faithful 
conduct  of  each  other,  and  careful  to  induce  it,  while  the 
opposite  doctrine  would  tend  in  a  different  direction. ^°  The 
safety  and  welfare  of  the  public,  therefore,  demand  the 
establishment  of  the  principle  of  the  non-liability  on  the 
part  of  the  employer  in  such  case  ;^^  while,  when  estab- 
lished, it  can  work  no  injury  to  the  servant,^*  because  his  en- 
tering upon  the  service  is  voluntary,^^  is  with  a  knowledge  of 
its  hazards,  and  with  a  power  and  right  to  demand  such 
wages  "  as  he  should  deem  compensatory. ' '  ^^  The  doctrine  of 
Priestly  v.  Fowler  ^^  was  stated  by  Baron  Alderson  in  a  sub- 
sequent case  in  these  words:  "They  have  both  engaged  in  a 
common  service,  the  duties  of  which  impose  a  certain  risk 
on  each  of  them,  and  in  case  of  negligence  on  the  part  of 
the  other,  the  party  injured  knows  that  the  negligence  is  that 
of  his  fellow  servant  and  not  of  his  master."  "He  knew  when 
he  was  engaged  in  the  service  that  he  was  exposed  to  the 
risk  of  injury,  not  only  from  his  own  want  of  skill  and  care, 
but  also  from  the  want  of  it  on  the  part  of  his  fellow  servant, 

*  Where    was    the    autliority    to  "  Experience  shows  that  it  does, 

say    there    was    an    implied    con-  until    legislature   after   legislature 

tract?     Did  not  the  court  merely  has  been  compelled  to  modify  the 

assume   there   was   such   contract?  harsh  rule  announced  by  these  de- 

'  Farwell  v.  Boston,  etc.,  R.  Co.  cisions. 

4  Mete.  49;  38  Am.  Dec.  339.  "True  only  in  a  limited  sense, 

'"This   is  a   strange  assumption  because  of  the  pressure  that  mod- 

in  view  of  the  law  on  the  subject  em   civilization   thrusts   upon   the 

in  Continental   Europe.  laboring   man   to   secure   for   him- 

"  Experience  of  long  years'   du-  self  and  family  the  sustenance  of 

ration    shows    that    the    public    in  life. 

Westf-rn  Continental  Europe  are  as  "The  supply  of  labor   fixes  the 

safely    cared    for    as    in    England  wages. 

and      much      more      so     than      in  '"Madison,  etc.    R.  Co.  v.  Bacon. 

Am^TJca,   as   against   tlie   careless-  0  Ind.  205. 

ne»8  of  servants.  '•  3  Meea  &  Wels,  1. 


CONSTITUTIONALITY    OF   STATUTE. 


11 


and  he  must  be  supposed  to  have  contracted  on  the  terms 
that,  as  between  himself  and  his  master,  he  would  run  the 
risk,  'a  risk  which  he'  must  be  taken  to  have  agreed  to  run 
when  he  entered  into  the  defendant's  service."  "The  prin- 
ciple is,"  Baron  Alderson  again  said,  "that  a  servant,  when 
he  engages  to  serve  a  master,  undertakes,  as  between  himself 
and  his  master,  to  run  all  the  ordinary  risks  of  the  service, 
and  this  includes  the  risk  of  negligence  on  the  part  of  a  fel- 
low servant,  whenever  he  is  acting  in  the  discharge  of  his 
duty  as  servant  of  him  who  is  common  master  of  both. ' '  ^^ 

§  7.  Validity  of  statute  allowing  a  recovery  for  an  injury 
occasioned  by  a  fellow  servant's  negligence.— From  an  ex- 
amination of  the  cases  quoted  and  cited  in  the  foregoing  sec- 
tion, it  will  be  seen  that  they  rest  upon  practically  two 
grounds :  That  it  is  against  public  policy  to  allow  a  servant  to 
recover  damages  occasioned  by  the  negligence  of  his  fellow 


"  Hutchinson  v.  York,  etc.,  R. 
Co.  5  Exch.  343;  14  Jur.  837;  19 
L.  J.    (Exch.)    296. 

The  English  rule  was  forced 
upon  the  courts  of  Scotland  by  the 
decision  of  the  House  of  Lords  in 
Wilson  V.  Merry,  L.  R.  1  Sc.  & 
Div.  App.  Cas.  326;  19  L.  T.  (N. 
S.)   30. 

For  a  few  of  the  hundreds  of 
cases  upon  this  question,  see  Wa- 
bash, etc,  R.  Co.  V.  Conkling,  15 
111.  App.  157;  Stucke  v.  Orleans 
R.  Co.  50  La.  Ann.  188,  23  So. 
Rep.  342;  Ackerson  v.  Dennison, 
117  Mass.  407;  World's  Colum- 
bian Exposition  v.  Bell,  76  111. 
App.  501;  Doyle  v.  White,  9  App. 
Div.  (N.  Y.)  521;  41  N.  Y.  Supp. 
628 ;  75  N.  Y.  St.  Rep.  628 ;  Hicka 
V.  Southern  R.  Co.  63  S.  C.  559; 
41  S.  E,  Rep.  753;  Barton's  Hill 
Coal  Co.  V.  Ried,  3  Macq.  H.  L. 
Cas.  266;  Baltimore,  etc.,  R.  Co. 
V.  Colvin,  118  Pa.  St.  230;  12  Atl. 
Rep.  337;  20  W.  N.  C.  531;  Chi- 
cago, etc.,  R.  Co.  V.  Ross,  112  U. 
S.  377;  28  L.  Ed.  787:  5  Sup.  Ct. 
Rep.  184;  Latremouille  v.  Ben- 
ninston,  63  Yt.  b36;   22  Atl.  Rep. 


656;  48  Am.  &  Eng.  R.  Cas. 
265;  Walton  v.  Bryn  Mawr  Hotel 
Co.,  160  Pa.  St.  3;  28  Atl.  Rep. 
438;  Olsen  v.  Nixon,  61  N.  J.  L. 
671;  4  Am.  Neg.  Rep.  515;  40 
Atl.  Rep.  694;  Jungnitsch  v. 
Michigan,  etc.,  Co.  105  Mich.  270; 
63  N.  W.  Rep.  296;  2  Det.  Leg. 
N.  107;  Elwell  v.  Hocker,  86  Me. 
416;  30  Atl.  Rep.  84. 

After  a  review  of  the  early  cases 
on  this  subject,  Hon.  Addison  C. 
Harris  said  in  his  address  befoi'e 
the  Indiana  State  Bar  Association, 
July  7,  1909  (Indiana  Bar  Asso- 
ciation Report  for  1909,  p.  50): 
"So,  now  no  matter  how  negligent 
the  employer  might  be,  yet  if  it 
appeared  ( 1 )  that  the  accident  was 
caused  by  the  negligence  of  a  fel- 
low servant,  or  (2)  that  the  serv- 
ant injured  contributed  in  the 
slightest  degree  to  the  accident, 
in  none  of  these  cases  was  there 
any  right  of  action.  And  these 
rules  were  supported  by  the  pre- 
sumption (3)  that  the  accident 
was  caused  by  some  fault  of  the 
servant,  because  generally  men  are 
not  injured  while  carefully  doing 
their  work;  and  so  the  burden  of 
proof  was  put  upon  him  to  show 


12 


FEDERAL   EMPLOYERS'   LIABILITY    ACT. 


servant,  and  the  other  is  that  he  has  by  his  contract  for 
service  impliedly  assumed  the  risk  of  such  association  or  of 
his  fellow  servant's  negligence.  Such  being  the  case,  it  read- 
ily follows  that  the  legislature  can  change  the  rule  of  public 
policy  or  provide  that  the  implied  undertaking  shall  not  be  a 
part  of  the  contract  for  service.  In  the  usual  employers  li- 
ability statutes  this  is  done  only  to  a  limited  extent,  by  pro- 
viding in  what  particular  instance  the  servant  may  recover 
for  injuries  occasioned  by  his  fellow's  negligence,  or  by 
providing  in  what  particular  instances  the  relation  in  law 
of  fellow  servant  shall  not  be  deemed  to  exist.  Such  statutes 
have  been  universally  upheld,  both  by  the  state  and  Federal 
courts. ^^     This  power  has  been  stated  thus  tersely:     "It  is 

both  the  negligence  of  his  em-  affirming  31  Minn.  11;  IG  N.  W. 
ployes  and  that  he  had  not  in  any  Rep.  413;  47  Am.  Rep.  771;  Pitts- 
wise  helped  or  contributed  to  the  burg,  etc.,  R.  Co.  v.  IMontgomery, 
accident.  And  the  court  went  fur-  152  Ind.  1;  49  N.  E.  Rep.  482; 
ther  and  held  (4)  that  if  the  69  L.  R.  A.  875;  71  Am.  St.  30; 
workmen  knew,  or  in  the  exercise  Pittsburg,  etc.,  R.  Co.  v.  Light- 
of  ordinary  care  and  observation  heiser,  168  Ind.  438;  78  N.  E. 
shouild  have  known,  of  the  negli-  Rep.  1033;  Indianapolis,  etc.,  R. 
gence  of  the  master,  then  he  could  Co.  v.  Houghton,  157  Ind.  494;  60 
not  recover,  even  though  in  the  N.  E.  Rep.  943:  54  L.  R.  A.  787; 
hurry  and  stress  of  his  hazardous  Pittsburg,  etc.,  R.  Co.  v.  Ross,  169 
service  at  the  immediate  time  of 
the  accident  he  did  not  recall  his 
master's  negligence." 

>'  McAunick  v.  Mississippi  etc., 
R.  Co.  20  Iowa,  338;  Bucklew  v. 
Central,  etc.,  R.  Co.  64  Iowa,  611; 
Rose  v.  Des  Moines,  etc.,  R.  Co. 
39  Iowa,  246;  Kansas,  etc.,  R.  Co. 
V.  Peavey,  29  Kan.  109;  Missouri 
Pacific  R.  Co.  V.  Mackey,  33  Kan. 
298;  6  Pac.  Rep.  291;  Attorney- 
General  V.  Railroad  Cos.  35  Wis. 
425;  Dithberner  v.  Chicago,  etc., 
R.  Co.  47  Wi.s.  138;  2  N.  W.  Rep. 
60;    Herrick    v.   Minnea])olis,   etc., 

R.    Co.    31    Minn.    11;    16    N.    W. 

Rep.    413     (upholding    Iowa    stat- 
ute) ;  Herrick  v.  Minneapolis,  etc., 

R.   Co.   32   Minn.   435;    21    N.   W. 

Rep.    471;    Missouri,    etc.,    R.    Co. 

V.    .Mackey,    127   U.   S.   205;    32   L. 

Ed.    107;    8    Sup.    Ct.    Rep.    1161, 

affirming     33     Kan.    298;     6    Pac. 

Rep.  291  ;  Minneapolis,  etc.,  R.  Co. 

v.   Herrick,    127    U.   S.   210;    32   L. 

Ed.    109;    8    Slip.    Ct.     Itc'p.     1176, 


Ind.  3;  80  N.  E.  Rep.  84.');  Chi- 
cago, etc.,  Ry.  Co.  v.  Pontius,  157 
U.  S.  209;  39  L.  Ed.  675;  15  Sup. 
Ct.  Rep.  585,  affirming  52  Kan. 
264;  34  Pac.  Rep.  739;  Baltimore, 
etc.,  R.  Co.  v.  Voight,  176  U.  S. 
498;  44  L.  Ed.  560;  20  Sup.  Ct. 
Rep.  385;  McGuire  v.  Ch'Vago,  ^tc, 
R.  Co.  131  Iowa,  340;  108  N.  W. 
Rep.  902;  Hancock  v.  Railway  Co. 
r-4  N.  C.  222;  32  S.  E.  Rep.  670; 
Tullis  V.  Lake  Erie,  etc.,  R.  Co. 
175  U.  S.  348;  44  L.  Ed.  192: 
20  Sup.  Ct.  Rep.  136;  Railroad 
Co.  V.  Thompson,  54  Ga.  509; 
Georgia  R.  Co.  v.  Ivey,  73  Ga. 
499;  Georgia  R.  Co.  v.  Brown,  86 
Ga.  320;  Creorgia  R.  Co.  v.  Miller, 
90  Ga.  574;  St.  Louis,  etc.,  R.  Co. 
V.  Matthews,  165  U.  S.  1 ;  41  L. 
Ed.  611;  17  Sup.  Ct.  Rep.  243; 
affirming  121  Mo.  298;  25  L.  R. 
A.  161;  24  S.  W.  Rep.  591;  Hol- 
den  v.  Hardy,  169  U.  S.  366:  42 
L.  Ed.  780;  18  Sup.  Ct.  Rep. 
.".H3;    affirming    14    Utah,    71;    37 


CONSTITUTIONALITY   OF   STATUTE.  13 

competent  for  the  legislature,  in  the  exercise  of  the  police 
power,  to  take  steps  for  the  protection  of  the  lives  and  limbs 
of  all  persons  who  may  be  exposed  to  dangerous  agencies  in 
the  hands  of  others. "  ^'-^  In  a  recent  case  in  Colorado  the  valid- 
ity of  a  statute  abolishing  the  doctrine  of  co-service  as  a 
defense  was  passed  upon  and  the  statute  upheld  in  the  fol- 
lowing language:  "The  final  and  important  question  is  the 
validity  of  the  co-employe  act.  It  is  urged  that  the  act  is 
unconstitutional  in  that  it  is  in  conflict  with  the  fourteenth 
amendment  to  the  Federal  Constitution,  because  it  deprives 
persons  of  their  property  without  due  process  of  law.  The  act 
in  question  renders  the  employer  liable  for  damages  result- 
ing from  injuries  to  or  death  of  an  employe,  caused  by  the 
negligence  of  a  co-employe  in  the  same  manner,  and  to  the 
same  extent,  as  if  the  negligence  causing  the  injury  or  death 
was  that  of  the  employer.  That  the  act  in  question  may  be 
regarded  by  some  as  harsh  or  unjust,  because  imposing  too 
great  a  disability,  is  not  a  matter  which  we  can  consider  in 
determining  its  validity  by  constitutional  tests.  Whether  or 
not  the  employer  is  liable  under  the  act  in  question  must  be 
determined  by  each  particular  case  based  on  the  provisions 
of  the  act.  It  does  not  deprive  him  of  any  defense  to  the 
liability  thereby  imposed  which,  under  the  established  rules 
of  law  could  be  regarded  as  sufficient,  save  and  except  his 
own  lack  of  negligence ;  but  such  a  defense  is  not  a  consti- 
tutional right.  The  law  itself,  as  a  rule  of  conduct,  may, 
unless  constitutional  limitations  forbid,  be  changed  at  the 
will  of  the  legislature.  The  exercise  of  the  discretion  of 
that  branch  of  the  government  to  enact  laws  cannot  be  ques- 

L.   R.   A.    103;    46   Pac.   Rep.   756;  N.     E.     Rep.     415;     Mickelson    v. 

14    Utah,    96;    37    L.    R.    A.    108:  Truesdale,    63    Minn.    137;    65    N. 

46  Pac.  Rep.  1105;  St.  Louis,  etc.,  W.  Rep.  260. 

R.    Co.    V.    Paul,    173    U.    S.    404;  '"Indianapolis,    etc.,    R.    Co.    v. 

43  L.   Ed.  746;    19   Sup.   Ct.   Rep.  Houlihan,  157  Ind.  494;   60  N.  E. 

419;   affirming  64  Ark.  83;   37   L.  Rep.   943;    54   L.   R.   A.   787.     See 

R.  A.  504;   62  Am.  St.  Rep.   154;  Tullis   v.    Railway   Co.    175    U.    S. 

40  S.  W.  Rep.  705;  Pittsburg,  etc.,  348;   20  Sup.  Ct.  Rep.  136;   44  L, 

R.  Co.  V.  Collins,  168  Ind.  467;  80  Ed.  192.      . 


14  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

tioned  so  long  as  such  laws  do  not  conflict  with  either  state 
or  Federal  constitutional  provisions.  No  such  provisions  have 
been  called  to  our  attention  w^hich  limit  the  authority  of  the 
general  assembly  to  abolish  the  rule  heretofore  existing  which 
exempted  the  employer  from  liability  to  employes  caused  by 
the  negligence  of  a  co-employe,  and  render  him  liable  to  his 
employes  for  the  negligence  of  a  co-employe.  For  the  pur- 
pose of  providing  for  the  safety  and  protection  of  employes 
in  the  service  of  a  common  employer,  the  law  making  power 
has  the  undoubted  authority  to  abrogate  the  exception  to  the 
general  rule  respondeat  superior  in  favor  of  the  employer, 
and  make  him  liable  to  one  of  his  employes  for  damages 
caused  by  the  negligence  of  another  employe  while  acting 
Avithin  the  scope  of  his  employment,  regardless  of  the  fact 
that  such  employes  are  fellow  servants. ' '  ^^ 

§  8.  Validity  of  statute  as  to  past  contracts  of  employ- 
ment.— Where  the  servant  has  entered  into  the  employment 
of  a  master  before  the  statute  has  taken  effect,  but  the  em- 
ployment is  not  for  a  continuous  service — as  in  the  case  of  a 
railroad  engineer — and  after  the  passage  of  the  statute  is  in- 

20  Vindicator,  etc.,  Co.  v.  First-  K.  Oo.  v.  Brown,  86  Ga.  320;    12 

brook,  36  Colo.  498:   86  Pac.  Kep.  S.  E,  Rep.   812;    Georgia,  etc.,  E. 

313.     Mobile,   J.   &   K.    C.   R.    Co.  Co.   v.   Cosby,   97   Ga.   299;    22   S. 

V.    Turnipseed,    219    U.    S.    35;    31  E.    Rep.    912;     Southern,    etc.,    R. 

Sup.  Ct.  136;  '55  L.  Ed.  78;  affirm-  Co.   v.    Johnson,    114   Ga.   329;    40 

incr    01    Miss.    273;    46    So.    360;  S.   E.    Rep.   235;    Georgia,   etc.,   R. 

124    Am.    St.    679;     Florida    East  Co.   v.   Ivey,  73  Ga.  499;    Georgia, 

Coast    V.    Lassiter,    58    Fla.    234;  etc.,  R.  Co.  v.  Hicks,  95  Ga.  301; 

50  So.  428.  22    S.    B.    Rep.    613;    Chandler    v. 

That   a   statute   imj^sing   liabil-  Southern  R.  'Oo.    113  Ga.   130;   38 

ity  on  the  master  for  an  injury  to  S.  E.  Rep.  305. 

his  servant  where   lie,  the   master,  For  a  recent  case  on  this  ques- 

is  not  negligent,  see  Ives  v.  South  tion,    see    Kilcy    v.    Chicago,    etc., 

Ruflalo   Ry.    Co.    201    N.    Y.    271;  R.   Oo.    138   Wis.   215;    119  N.  W. 

94  N.  E.  431;  reversing  140  N.  Y.  Rep.    309;     120    N.    W.    756,    and 

App.    Div.    921;    125   N.   Y.    Supp.  Having  v.  Great  Northern  Ry.  Co. 

1125,    whicli    affirmed    08    N.    Y.  137  Wis.  367;  119  N.  W.  Rep.  325. 

Misc.   Rep.   643;    124  N.  Y.   Supp.  Tliese   last   two   cases   hold  that 

920.  the    excepting    of    office    and    shop 

For   some  Georgia  cases  holding  employes   of    a    railroad    from   the 

under    Die    Code    that    a    rtxiovery  operation  of  the  act  does  not  ren- 

can   lie   had   for   an    injury  cjiused  dor    it    invalid.      See    Callahan    v. 

by  the  negligence  of  a  fellow  serv-  Bridge  Co.,  170  Mo.  473;  71  S.  W. 

ant,    see    (icorgia,    etc.,    R.    Co,    v.  Rep.    208;    60   L.    R.    A.    249;    94 

Goldwire,    56    Ga.    196;    Marsh   v.  Am.  St.  Rep.  746;  Howard  v.  Illi- 

Souili    Carolina,    etc.,    R.    Co.    56  nois    Central    Rv.    Co.    207    U.    S. 

(ia.    274;    Cieorgia,    etc.,    R.    Co.    v.  463;     28    Sup.    Ct.    Rep.    141;    62 

Rhodes,  56  Ga.  645;   Georgia,  etc.,  L.  Ed.  297. 


CONSTITUTIONALITY   OP   STATUTE.  15 

jured  by  a  fellow  servant,  and  he  would  not  have  had  a  right 
of  recovery  except  for  its  provisions,  he  may  recover  his  dam- 
ages, and  such  legislation  is  not  retroactive  nor  does  it  impair 
the  obligation  of  a  contract. ^'^  This  question  came  before  the 
Circuit  Court  for  the  Northern  District  of  Iowa  upon  a  con- 
struction of  the  act  of  June  11,  1906,--  but  the  court  held 
that  the  statute  in  its  terms  was  not  retroactive.  The  question 
then  before  the  court  was  whether  the  act  of  Congress  had 
taken  away  a  right  of  action  given  by  an  Iowa  statute,  the 
cause  of  action  having  arisen  in  1905 ;  and  the  court  held 
that  the  act  of  1906  had  no  retroactive  effect,  and  if  it  did 
so  have  as  to  take  away  the  cause  of  action,  it  would  be  void.-^ 

§  9.  Limiting  statute  to  employes  of  railroad  companies 
— Fourteenth  Amendment. — A  statute  concerning  liability 
of  a  master  to  his  servant  for  injuries  occasioned  by  his  fellow 
is  not  special  legislation,  nor  is  it  the  taking  of  prop- 
erty without  due  process  of  law.  ' '  The  company  calls  attention 
of  the  court,"  said  Justice  Field  of  the  Supreme  Court  of  the 
United  States,  "to  the  rule  of  law  exempting  from  liability 
an  employer  for  injuries  to  emploj^es  caused  by  the  negligence 
or  incompetency  of  a  fellow  servant  w^hich  prevailed  in  Kan- 
sas and  in  several  other  states  previous  to  the  act  of  1874, 
unless  he  had  employed  such  negligent  or  incompetent  serv- 
ant without  reasonable  inquiry  as  to  his  qualifications,  or  had 
retained  him  after  knowledge  of  his  negligence  or  incom- 
petency. The  rule  of  law  is  conceded  where  the  person  in- 
jured, and  the  one  by  whose  negligence  or  incompetency  the 
injury  is  caused,  are  fellow  servants  in  the  same  common 
employment,  and  acting  under  the  same  immediate  action 
*  *  *  Assuming  that  this  rule  would  apply  to  the  case 
presented  but  for  the  law  of  Kansas  of  1874,  the  contention 

=»  Pittsburg,  etc.,  R.  Co.  v.  Light-  "^  C.  3073,  34  statute  at  L.  232. 

heiser,    168    Ind.    438;    78    N.    E.  '"TiaU   v.    Chicago,   etc.,   R.    Co. 

Rep.   1033;   Pittsburg,  etc.,  R.  Co.       149  Fed.  Rep.  564. 
V.    Lightheiser,    163    Ind.   247;    71 
N.  E.  Rep.  218,  660. 


16  FEDERAL   EMPLOYERS'    LL4.BILITY   ACT. 

of  the  company  *  *  *  jg  that  the  law  imposes  upon  rail- 
road companies  a  liability  not  previously  existing,  in  the 
enforcement  of  which  their  property  maj^  be  taken ;  and  thus 
authorizes,  in  such  cases,  the  taking  of  property  without  due 
process  of  law,   in  violation   of  the   fourteenth  amendment. 

*  *  *  The  supposed  hardship  and  injustice  consist  in  im- 
puting liability  to  the  company,  where  no  personal  wrong  or 
negligence  is  chargeable  to  it  or  to  its  directors.  But  the 
same  hardship  and  injustice,  if  there  be  any,  exist  where  the 
company,  without  any  M^rong  or  negligence  on  its  part,  is 
charged  for  injustice  to  passengers.  *  *  *  The  utmost 
care  on  its  part  will  not  relieve  it  from  liability,  if  the  pas- 
senger injured  be  himself  free  from  contributory  negligence. 
The  law  of  1874  extends  this  doctrine  and  fixes  a  liability 
upon  railroad  companies,  where  injuries  are  subsequently  suf- 
fered by  employes,  though  it  may  be  by  the  negligence  or 
incompetency  of  a  fellow  servant  in  the  same  general  employ- 
ment and  acting  under  the  same  immediate  direction.  That  its 
passage  was  within  the  competency  of  the  legislature  we  ean 
have  no  doubt.  The  objection  that  the  law  of  1874  deprives 
the  railroad  companies  of  the  equal  protection  of  the  law  is 
even  less  tenable  than  the  one  considered.  It  seems  to  act 
upon  the  theory  that  legislation  which  is  special  in  its  char- 
acter is  necessarily  within  the  constitutional  inhibition;  but 
nothing  can  be  further  from  the  fact.  The  greater  part  of 
all  legislation  is  special,  either  in  the  objects  sought  to  be 
attained  by  it,  or  in  the  extent  of  its  application.  Laws  for 
the  improvement  of  municipalities,  the  opening  and  widen- 
ing of  particular  streets,  the  introduction  of  water  and  gas, 
and  other  arrangements  for  the  safety  and  convenience  of 
their  inhabitants,  and  the  laws  for  the  irrigation  and  drain- 
age of  particular  lands,  for  the  construction  of  levees  and 
the  bridging  of  navigable  rivers,  are  instances  of  this  kind. 

*  *  *  A  law  giving  to  mechanics  Ji  lien  on  buildings  con- 
structed or  repaired  by  them,  for  the  amount  of  their  work, 
and  a  law  reciuiring  railroad  corporations  to  erect  and  main- 


CONSTITUTIONALITY   OF  STATUTE. 


17 


tain  fences  along  their  roads,  separating  them  from  land  of 
adjoining  proprietors  so  as  to  keep  cattle  off  their  tracks,  are 
instances  of  this  kind.  Such  legislation  is  not  obnoxious  to 
the  last  clause  of  the  fourteenth  amendment,  if  all  persons 
subject  to  it  are  treated  alike  under  similar  circumstances 
and  conditions  in  respect  of  both  the  privileges  conferred 
and  the  liabilities  imposed.  *  *  *  But  the  hazardous 
character  of  the  business  of  operating  a  railway  would  seem 
to  call  for  special  legislation  with  respect  to  railroad  cor- 
porations, having  for  its  object  the  protection  of  their  em- 
ployes as  well  as  the  safety  of  the  pubic."-*  In  a  subse- 
quent case  a  like  decision  was  made,  where  a  statute  applied 
only  to  railroads.-^ 


"  Missouri    Pacific    Ry.    Co.    v. 
Mackey,  127  U.  S.  205;  8  Sup.  Ct. 
Rep.  1 161 ;  32  L.  Ed.  107  ;  affirming 
33    Kan.    298;    6    Pac.    Rep.    291; 
Minneapolis,    etc.,   R.   Co.    v.   Her- 
rick,    127   U.   S.   210;    8    Sup.   Ct 
Rep.  1176;  32  L.  Ed.  109,  and  af 
firming    Herrick    v.     Minneapolis 
etc.,   R.   Co.   31    Minn.    11;    16   N, 
W.   Rep.   413:    47   Am.   Rep.   771 
Herrick    v.    Minneapolis,    etc.,    Co 
32  Minn.  435;  21  N.  W.  Rep.  471 
Pittsburg,    etc.,    R.    Co.    v.    Mont 
gomery,  152  Ind.  1 ;  49  N.  E.  Rep 
482;   69  L.  R.  A.  875;   71  Am.  St 
Rep.   30;    Indianapolis   Union   Ry 
Co.  V.  Houlihan,   157  Ind.  494;   60 
N.  E.  Rep.  943;   54  L.   R.  A.  787. 

"Gulf,  etc.,  R.  Co.  V.  Ellis,  165 
U.  S.  150;  17  Sup.  Ct.  Rep.  255: 
41  L.  Ed.  666;  reversing  87  Tex. 
19;  26  S.  W.  Rep.  985,  Alummun 
Co.  V.  Ramsey  32  Sup.  Ct.,  76. 

Deppe  V.  Chicago,  etc.,  R.  Co.  36 
Iowa,  52;  Schroeder  V.  Chicago, 
etc.,  R.  Co.  47  Iowa,  375 ;  Potter  v. 
Chicago,  etc.,  R.  Co.  46  Iowa,  399 ; 
O'Brien  v.  Chicago,  etc.,  R.  Co.  116 


Fed.  Rep.  502;  Chicago,  etc..  R.  Co. 
V.  Pontius,  52  Kan.  264;  34  Pac. 
Rep.  739;  affirmed,  157  U.  S.  209; 
15  Sup.  Ct.  Rep.  585;  39  L.  Ed. 
675;  Lavallee  v.  St.  Paul,  etc., 
R.  Co.  40  Minn.  249;  41  N.  W. 
Rep.  974;  Johnson  v.  St.  Paul, 
etc.,  R.  Co.  43  Minn.  222;  45  N. 
W.  Rep.  156;  8  L.  R.  A.  419; 
Hancock  v.  Norfolk,  etc.,  R.  Co. 
124  N.  C.  222;  32  S.  E.  Rep. 
679 ;  Indianapolis,  etc.,  R.  Co.  v. 
Houlihan,  157  Ind.  494;  60  N.  E. 
Rep.  943;  54  L.  R.  A.  787;  Dith- 
berner  v.  Chicago,  etc.,  R.  Co.,  47 
Wis.  138. 

There  has  been  much  discussion 
whether  or  not  the  prohibition  in 
the  Fourteenth  Amendment  pro- 
hibiting states  enacting  laws  giv- 
ing unequal  protection  to  citizens 
is  the  same  in  meaning  with  ref- 
erence to  such  states  as  the  pro- 
hibition in  the  Fifth  Amendment 
is  with  reference  to  the  power  of 
Congress.  The  question  has  never 
been  decided.  See  Stratton  v. 
INIorris,  89  Tenn.   497. 


18  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

§10.     Validity  of  statute  classifying  instrumentalities.— 

Not  only  may  the  legislature  select  railway  compauies  for 
legislation  concerning  their  employes,  but  it  may  specify  in 
what  particulars  they  shall  be  liable,  as,  for  instance,  con- 
cerning "any  signal,  telegraph  office,  switch  yard,  shop, 
round  house,  locomotive  engine  or  train  upon  a  railway." 
"These,"  said  the  Supreme  Court  of  Indiana,  "were  proper 
to  be  selected  as  sources  of  unusual  danger  which  should  be 
guarded  against ;  the  object  to  be  accomplished  was  to  incite 
railroad  companies  to  use  the  utmost  diligence  in  the  selection 
and  supervision  of  their  servants  who  are  put  in  charge  of 
these  dangerous  agencies,  so  that  fewer  lives  and  limbs  of 
those  who  are  entitled  to  claim  the  protection  of  our  laws 
would  be  sacrificed;  the  legislature  evidently  considered 
that  strangers  and  employes  (the  attorney  and  the  ticket 
seller,  for  example)  who  w^ere  not  fellow  servants  of  those  in 
charge  of  the  agencies  named  were  sufficiently  protected  by 
the  railroad  company's  existing  liability  to  them  for  the 
negligent  operation  of  those  dangerous  agencies;  the  legis- 
lature evidently  determined  to  protect  all  persons  who  were 
not  already  protected  for  the  negligent  use  of  particular  in- 
struments; this  classification  is  made  on  the  basis  of  the 
peculiar  hazards  in  railroading,  relating  equally  to  all  em- 
ployers within  the  class;  to  separate  railroading  from  other 
business  was  not  an  unconstitutional  discrimination,  because 
the  dangers  (the  basis  of  the  classifications)  do  not  arise 
from  the  same  sources ;  but  the  claim  that  a  classification  not 
made  on  the  basis  of  dangerous  agencies  employed  in  the 
business,  but  founded  on  the  question  whether  the  employe 
who  was  injured  without  his  fault  by  a  fellow  servant's 
negligent  use  of  a  dangerous  agency  was  acting  at  the  time 
on  his  own  initiative  in  the  line  of  his  duty  or  under  the 
orders  of  a  superior,  is  the  only  constitutional  classification, 
is  unwarranted;  a  train  is  wrecked  through  the  negligence 
of  the  engineer,  two  brakemen  are  injured  without  fault  on 
their  part,  one  acting  at  the  time  in  obedience  to  the  con- 


CONSTITUTIONALITY    OP    STATUTE. 


19 


ductor's  orders,  the  other  acting  on  his  own  initiative  within 
the  line  of  his  duty ;  there  should  be  and  there  is  no  consti- 
tutional limitation  upon  the  legislature's  exercise  of  the 
police  power  by  which  a  law  may  not  be  enacted  to  protect 
both  brakemen  equally  from  the  negligence  of  the  engineer. 
We  hold,  therefore,  that  the  act  is  not  obnoxious  to  the  ob- 
jections urged  by  appellants. ' '  -^ 

§  11.     Power  of  Congress  to  enact  statute  of  1908. — The 

Employers  Liability  Act  of  1906  was  stricken  down  because 
congress  had  attempted  to  legislate  upon  a  subject  or  sub- 
ject-matter that  related  wholly  to  the  power  of  a  state ;  and 
had  so  attempted  to  interblend  that  power  with  its  power  to 
legislate  upon  the  subject  of  interstate  commerce  that  the 
several  clauses  could  not  be  separated  and  those  clauses  re- 
lating alone  to  interstate  commerce  remain.  It  was  upon 
this  ground  alone  that  this  statute  of  1906  was  overthrown. 


*  Indianapolis  Union  Ry.  Co.  v. 
Houlihan,  167  Ind.  494;  60  N.  E. 
Rep.  943;  54  L.  R.  A.  787. 

That  a  classification  cannot  be 
made  arbitrarily,  see  Gulf,  etc., 
R.  Co.  V.  Ellis,  165  U.  S.  150; 
17  Sup.  Ct:  Rep.  255;  41  L.  Ed, 
666;  State  v.  Loomis,  115  Mo. 
807;  Missouri  Pacific  R.  Co.  v. 
Mackey,  127  U.  S.  205;  8  Sup. 
Ct.  Rep.  llfil;  32  L.  Ed.  107;  St. 
Louis,  etc.,  R.  Co.  v.  Paul,  173 
U.  S.  404;  19  Sup.  Ct.  Rep.  419; 
43  L.  Ed.  746;  Connelly  v.  Union 
Sewer  Pipe  Co.  184  U.  S.  540;  22 
Sup.  Ct.  Rep.  431;  46  L.  Ed.  679; 
Akeson  v.  R.  Co.  106  Iowa,  54; 
75  N.  W.  Rep.  676;  Lavallee  v. 
St.  Paul,  etc.,  R.  Co.  40  Minn. 
249;  41  N.  W.  Rep.  947;  Johnson 
V.  St.  Paul,  etc.,  R.  Co.  43  Minn. 
222;  45  N.  W.  156:  Missouri, 
etc.,  R.  Co.  V.  Medaris,  60  Kan. 
151;  55  Pac.  Rep.  875:  Indiana- 
polis T.  &  T.   Co.  V.   Kinney,   171 


Ind.  612;  85  K  E.  Rep.  954; 
Tullis  V.  Lake  Erie,  etc.,  R.  Co. 
175  U.  S.  349;  20  Sup.  Ct.  Rep. 
136;  44  L.  Ed.  192;  105  Fed.  Rep. 
554;  Minnesota  Iron  Co.  v.  Kline, 
199  U.  S.  593:  26  Sup.  Ct.  Rep. 
159;  50  L.  Ed.  322;  Chicago,  etc., 
R.  Co.  V.  Pontius,  157  U.  S.  209; 
15  Sup.  Ct.  Rep.  585;  39  L.  Ed. 
075;  affirming  52  Kan.  264;  34 
Pac.  Rep.  739.  An  employee  is 
as  much  an  instrument  in  the  for- 
warding of  interstate  commerce 
as  a  car  loaded  with  interstate 
traffic;  and  Congress  has  as  much 
power  to  legislate  with  reference 
to  him  as  to  the  car.  It  certainly 
is  a  confession  of  the  great  weak- 
ness of  the  government  wlien  it  is 
claimed  that  the  United  States 
can  legislate  concerning  a  car  en- 
gaged in  interstate  commerce  but 
is  powerless  to  legislate  for  the 
protection  of  an  employee  hand- 
ling that  car. 


20  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 

But  the  court  was  very  careful  to  point  out  that  congress 
had  the  power  to  enact  a  statute  relating  to  employers  and 
employes  engaged  in  interstate  commerce,  where  the  statute 
was  enacted  for  the  protection  of  the  employe.  In  discussing 
the  act  of  1906,  and  meeting  the  assertion  that  there  was  a 
total  want  of  power  in  congress  in  any  conceivable  aspect  to 
regulate  the  subject  with  which  the  act  dealt,  and  also  stating 
that  "if  it  be  that  from  the  nature  of  the  subject  no  power 
whatever  over  the  same  can,  under  an}^  conceivable  circum- 
stances, be  possessed  by  congress,  we  ought  to  so  declare, ' '  the 
Supreme  Court,  through  Justice  White,  said: 

"1.  The  proposition  th'at  there  is  an  absolute  want  of 
power  in  congress  to  enact  the  statute  is  based  on  the  as- 
sumption that  as  the  statute  is  solely  addressed  to  the  regu- 
lation of  the  relations  of  the  employer  to  those  whom  he 
employs  and  the  relation  of  those  employed  by  him  among 
themselves,  it  deals  with  subjects  which  cannot  under  any 
circumstances  come  within  the  power  conferred  upon  con- 
gress to  regulate  commerce. 

As  it  is  patent  that  the  act  does  regulate  the  relation 
of  master  and  servant  in  the  cases  to  which  it  applies,  it 
must  follow  that  the  act  is  beyond  the  authority  of  congress 
if  the  proposition  just  stated  be  well  founded.  But  we  may 
not  test  the  power  of  congress  to  regulate  commerce  solely 
by  abstractly  considering  the  particular  subject  to  which  a 
regulation  relates,  irrespective  of  whether  the  regulation  in 
question  is  one  of  interstate  commerce.  On  the  contrary, 
the  test  of  power  is  not  merely  the  matter  regulated,  but 
whether  the  regulation  is  directly  one  of  interstate  com- 
merce, or  is  embraced  within  the  grant  conferred  on  congress 
to  use  all  lawful  means  necessary  and  appropriate  to  the 
execution  of  the  power  to  regulate  commerce.  We  think  of 
the  unsoundness  of  the  contention,  that  because  the  act  regu- 
lates the  relation  of  master  and  servant,  it  is  unconstitu- 
tional, because  under  no  circumstances  and  to  no  extent  can 
the  regulation  of  such  subject  be  within  the  grant  of  author- 


CONSTITUTIONALITY    OP    STATUTE.  21 

ity  to  regulate  commerce,  is  demonstrable.  We  say  this  be- 
cause we  fail  to  perceive  any  just  reason  for  holding  that 
congress  is  without  power  to  regulate  the  relation  of  master 
and  servant,  to  the  extent  that  regulations  adopted  by  con- 
gress on  that  subject  are  solely  confined  to  interstate  com- 
merce, and,  therefore,  are  within  the  grant  to  regulate  that 
commerce  or  w^ithin  the  authority  given  to  use  all  means 
appropriate  to  the  exercise  of  the  powers  conferred.  T®  il- 
lustrate: Take  the  case  of  an  interstate  railway  train,  that 
is,  a  train  moving  in  interstate  commerce,  and  the  regulation 
of  which  therefore  is,  in  the  nature  of  things,  a  regulation 
of  such  commerce.  It  cannot  be  said  that  because  a  regula- 
tion adopted  by  congress  as  to  such  train  when  so  engaged 
in  interstate  commerce  deals  with  the  relation  of  the  master 
to  the  servants  operating  such  train  or  the  relations  of  the 
servants  engaged  in  such  operation  between  themselves,  that 
it  is  not  a  regulation  of  interstate  commerce.  This  must  be, 
since  to  admit  the  authority  to  regulate  such  train,  and  yet 
to  say  that  all  regulations  which  deal  with  the  relation  of 
master  and  servants  engaged  in  its  operation  are  invalid  for 
want  of  power  would  be  but  to  concede  the  power  and  then 
to  deny  it,  or,  at  all  events,  to  recognize  the  power  and  yet 
to  render  it  incomplete.  Because  of  the  reasons  just  stated 
we  might  well  pass  from  the  consideration  of  the  subject. 
We  add,  however,  that  we  think  the  error  of  the  proposition 
is  shown  by  previous  decisions  of  this  court.  Thus,  the  want 
of  power  in  a  state  to  interfere  with  an  interstate  commerce 
train,  if  thereby  a  direct  burden  is  imposed  upon  interstate 
commerce,  is  settled  beyond  question.^^  And  decisions 
cited  in  the  margin,-^  holding  that  state  statutes  which  regu- 

'^  Mississippi   E.   R.   Co.  v.   Illi-  Commissioners,  207  U.  S.  .328;   28 

nois   Cent.   R.  R.,   203  U.   S.   336,  Sup.  Ct.  Rep.  121;  52  L.  Ed.  230. 

343;    27   Sup.  Ct.  Rep.  90;    51   L.  =*  Sherlock    v.    Ailing,    93    U.    S. 

Ed.    209;    affirming   70    C.    C.    A.  99;    23   L.   Ed.   819;    affirming  44 

617;      138     Fed.     Rep.     377,     and  Ind.  184;  Missouri  Pacific  Ry.  Co. 

cases   cited;    Atlantic    Coast  Line  v.  Mackey,  127  U.  S.  205:   8  Sup. 

R.  R.  V.  Wharton  et  al.  Railroad  Ct.    Rep,    1161;    32    L.    Ed.    107; 


22 


FEDERAL    EMPLOYERS      LIABILITY    ACT. 


late  the  relation  of  master  and  servant  were  applicable  to 
those  actually  engaged  in  an  operation  of  interstate  com- 
merce, because  the  state  power  existed  until  congress  acted, 
by  necessary  implication,  refute  the  contention  that  a  regu- 
lation of  the  subject,  confined  to  interstate  commerce,  when 
adopted  by  congress  would  be  necessarily  void  because  the 
regulation  of  the  relation  of  master  and  servant  was,  how- 
ever, intimately  connected  with  interstate  commerce,  beyond 
the  power  of  congress.  And  a  like  conclusion  also  per- 
suasively results  from  previous  rulings  of  this  court  concern- 
ing the  act  of  congress,  known  as  the  Safety  Appliance 
Act."^^     The  validity  of  the  statute  is  now  settled.^^^ 


affirming  33  Kan.  298;  6  Pac.  Rep. 
291;  Minneapolis,  etc.,  Ry.  Co.  v. 
Herrick,  127  U.  S.  210;  8  Sup.  Ct.  Rep. 
1176;  32  L.  Ed.  109;  affirming  31 
Minn.  11;  16  N.  W.  Rep.  413;  47  Am. 
Rep.  771;  Chicago,  etc.,  Ry.  Co.  v. 
Pontius,  157  U.  S.  209;  155  Sup.  Ct. 
Rep.  58;  39  L.  Ed.  675;  affirming  52 
Kan.  264;  34  Pac.  Rep.  739;  Tullis  v. 
Lake  Erie  &  W.  R.  R.  175  U.  S.  348; 
20  Sup.  Ct.  Rep.  136;  44  L.  Ed.  192. 

^  Employers'  Liability  Cases,  207 
U.  S.  463;  28  Sup.  Ct.  Rep.  143;  52 
L.  Ed.  297;  decided  January  6,  1908, 
and  citing  Johnson  v.  Southern 
Pacific  Co.  196  U.  S.  1;  25  Sup.  Ct. 
Rep.  158;  49  L.  Ed.  303,  reversing  54 
C.  C.  A.  508;  117  Fed.  Rep.  462; 
Schlemmer  v.  Buffalo,  Rochester,  etc., 
Ry.  205  U.  S.  1;  27  Sup.  Ct.  Rep.  407; 
51  L.  Ed.  68,  reversing  207  Pa.  St. 
198;  56  Atl.  Rep.  417. 

The  question  of  the  constitution- 
ality of  this  statute  was  practically 
foreclosed  in  this  language  used  in  a 
subsequent  case:  "In  this  case  [the 
Employers'  Liability  case]  the  court 
sustained  the  authority  of  Congress, 
under  its  power  to  regulate  interstate 
commerce,  to  prescribe  the  rule  of 
liability,  as  between  interstate  carriers 
and  its  employees  in  such  interstate 
commerce,  in  cases  of  personal  in- 
juries received  by  employees  while 
actually  eng.agcd  in  such  commerce." 
Adair  v.  United  States,  208  U.  S.  161, 
178;  28  Sup.  Ct.  Rep.  277;  52  L.  Ed. 
436,  reversing  1.52  Fed.  Rep.  737. 

**°  The  act  is  constitutional.  Mon- 
don  V.  New  York,  N.  II.  &  R.  R.  Co. 
223  U.  3.  1;  32  Sup.  Ct.  32;  56  L.  Ed. 


327,  reversing  82  Conn.  352;  73  Atl. 
754;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Conley,  187  Fed.  949;  Walsh  v.  New 
York,  N.  H.  &  H.  R.  Co.  173  Fed.  494; 
Watson  V.  St.  Louis,  I.  M.  &  S.  R. 
Co.  169  Fed.  942;  Zikos  v.  Oregon  R. 
&  N.  Co.  179  Fed.  893;  El  Paso  &  N. 
E.  Ry.  Co.  V.  Gutierrez,  215  U.  S.  87; 
30  Sup.  Ct.  21;  54  L.  Ed.  106;  37 
Wash.  L.  Rep.  782;  affirming  117  S. 
W.  436,  which  reversed  (Tex.  Civ. 
App.),  117  S.  W.  159,  and  approved 
Hyde  v.  Southern  Ry.  Co.,  31  App. 
D.  C.  466;  Cain  v.  Southern  Ry.  Co. 
199  Fed.  211;  Illinois  Central  R.  Co. 
V.  Doherty,  153  Ky.  363;  155  S.  A. 
1119;  Missouri,  K.  &  T.  Ry.  Co.  v. 
Sadler  (Tex.  Civ.  App.),  149  S.  W. 
1188;  Philadelphia  B.  &  W.  R.  Co.  v. 
Schubert,  224  U.  S.  603;  32  Sup.  Ct. 
589;  56  L.  Ed.  911,  affirming  36  App. 
D.  C.  565;  Chicago  B.  &  O.  R.  Co.  v. 
McGuire,  219  U.  S.  549;  31  Sup.  Ct. 
259;  55  L.  Ed.  328;  Hyde  v.  Southern 
R.  Co.,  31  App.  D.  C.  466;  Illinois 
Cent.  R.  Co.  v.  Behrens,  233  V.  S. 
473;  34  Sup.  Ct.  646;  58  L.  Ed.  1051. 

"The  power  of  Congress  to  deal 
with  the  subject  comes  from  its  power 
to  regulate  commerce  between  the 
states."  Michigan  Cent.  R.  Co.  v. 
Vreeland,  227  U.  S.  59;  33  Sup.  Ct. 
192;  57  L.  Ed.  192,  reversing  189 
Fed. '495. 

Section  three  has  been  held  valid. 
McNamera  v.  Washington  Terminal 
Co.,  35  App.  D.  C.  230;  Potter  v. 
Baltimore  &  0.  R.  Co.  37  Wash.  Law 
Rep.  466.  Section  5  is  constitutional. 
Philadelphia  B.  &  W.  R.  Co.  v. 
Schubert,  224  U.  S.  603;  32  Sup.  Ct. 


§  12.  Constitutionality  of  Wisconsin  and  Nebraska  Stat- 
utes.— The  statute  of  Wisconsin  allowing  a  recovery  where 
the  plaintiff  has  contributed  to  his  injuries  by  his  negli- 
gence, but  apportioning  the  damages  according  to  his  neg- 
ligence which  contributed  to  the  injury,  has  been  held  consti- 
tional.  It  is  not  void  because  it  applies  only  to  railroads; 
nor  is  it  void  because  it  exempts  office  and  shop  employees 
from  its  provisions.-^*  So  the  Nebraska  statute  has  been 
held  valid.-^t 


589;  56  L.  Ed.  911,  affirming  36  App. 
D.  C.  565.  [See  also  McGuire  v. 
Chicago,  B.  &  O.  Ry.  Co.  131  Iowa, 
340;  108  N.  W.  902,  on  the  vaUdity 
of  a  state  statute.]  In  one  case  it  was 
decided  that  Congress  has  authority 
to  prescribe  rules  of  liability  as  be- 
tween an  interstate  carrier  and  its 
employees  in  interstate  commerce  in 
case  of  injury  to  the  employee  while 
actually  engaged  in  such  commerce; 
that  the  Act  of  June  22,  1908,  does 
not  attempt  to  delegate  judicial 
power  of  the  United  States  to  state 
courts,  in  violation  of  Article  3  of  the 
Constitution,  but  creates  substantive 
rights  not  solely  cognizable  in  the 
Federal  courts,  but  which  may  be 
availed  of  in  any  court  of  competent 
jurisdiction,  State  or  Federal;  that 
the  Act  is  not  invalid  because  it 
results  in  establishing  rules  and  meas- 
ures of  liability  in  cases  to  which  it 
applies,  different  from  those  which 
e.xist  under  the  state  laws  in  other 
cases  arising  from  the  relation  of 
master  and  servant,  nor  because  it 
gives  a  right  of  recovery  in  case  of  the 
death  of  an  employee  to  different 
parties;  that  whether  or  not  the  Act 
is  effective  to  carry  out  the  purpose 
intended,  and  thus  promote  inter- 
state commerce,  is  a  legislative  and 
not  a  judicial  question,  which  can  not 
affect  the  constitutional  power  of 
Congress  to  enact  it;  and  that  the  Act 
is  not  unconstitutional  as  denying  the 
equal  protection  of  the  laws  to  the 
carriers  affected  thereby.  If  section 
5  was  invalid,  it  was  held  that  its 
invalidity  would  not  affect  the  re- 
mainder of  the  Act.  Zikos  v.  Oregon 
R.  &  N.  Co.  179  Fed.  893. 

In  the  case  of  Hoxie  v.  New  York, 
N.  H.  &  H.  R.  Co.  82  Conn.  352;  73 
Atl.  754,  almost  every  line  of  the  Act 
was  held  to  be  unconstitutional.  That 
was  a  suit  brought  in  a  state  court  to 
recover  damages.  The  Supreme 
Court  held  that  a  state  court  had  no 
jurisdiction  of  such  an  action — one 
brought  under  the  statute — and  then 
in  its  eagerness  to  strike  down  the  Act, 
violated  a  practically  universal  prac- 


tice— never  to  pass  upon  the  con- 
stitutionality of  a  statute  unless 
necessary  to  a  disposal  of  the  case, 
especially  so  if  the  court  had  no 
jurisdiction  of  the  action  brought — 
and  held  the  entire  Act  unconsti- 
tutional. The  prejudice  of  the  writer 
of  that  opinion  against  Federal 
legislation  is  manifest  throughout  the 
opinion.  Because  of  this  opinion. 
Congress,  in  1910,  amended  the  Act 
expressly,  giving  state  courts  juris- 
diction. See  also  Mondon  v.  New 
York,  etc.,  R.  Co.  82  Conn.  373;  73 
Atl.  762;  reversed  223  U.  S.  1;  32 
Sup.  Ct.  169;  56  L.  Ed.  327.  The 
application  of  this  statute  to  carriers 
within  the  District  of  Columbia, 
whose  lines  extend  beyond  the 
District,  that  is,  who  are  also  in- 
terstate commerce  carriers,  does  not 
render  the  Act  unconstitutional. 
Washington  Ry.  Co.  v.  Downey,  40 
App.  D.  C.  147. 

The  power  to  regulate  carriers 
within  the  District  of  Columbia  does 
not  depend  on  the  interstate  com- 
merce clause,  but  to  the  power  of 
congress  to  legislate  generally  for  the 
District.  McNamara  v.  Washington 
Terminal  Co.  37  App.  D.  C.  389. 

Within  the  states  the  Act  of  June 
11,  1906,  is  not  valid  for  any  purpose. 
Chicago  I.  &  L.  R.  Co.  v.  Hackett, 
228  U.  S.  559;  33  Sup.  Ct.  581;  57 
L.  Ed.  581,  affirming  170  111.  App.  140. 

23*  Kiley  v.  Chicago,  M.  &  St.  P. 
Ry.  Co.  145  Wis.  326;  128  N.  W.  982; 
Kilev  V.  Chicago,  M.  &  St.  P.  Ry.  Co. 
138  Wis.  215;  119  N.  W.  309;  120  N. 
W.  756;  Ladd  v.  Minneapolis,  St.  P. 
&  S.  S.  M.  Ry.  Co.  142  Wis.  165; 
125  N.  W.  468. 

2'tSwoboda  v.  Union  Pacific  R.  Co. 
87  Neb.  200;  127  N.  W.  215;  Missouri 
Pacific  Ry.  Co.  v.  Castle,  172  Fed. 
841.  This  Nebraska  statute  covers 
the  case  of  a  railway  company's  ser- 
vant employed  in  the  water  supply 
department  and  engaged  in  drilling 
a  well  to  be  used  in  supplying  its 
locomotives  with  water.  Metz  v. 
Chicago,  B.  &  Q.  R.  Co.  88  Neb.  459; 
129  N.  W.  994. 


24 


FEDERAL   EMPLOYERS     LL^ILITY   ACT. 


§  13.  Invalidity  of  Act  of  1906.— The  ground  of  the  de- 
cision ^°  of  the  Supreme  Court  was  that  matters  pertaining 
to  the  state  and  those  pertaining  to  the  Federal  Government 


The  validity  of  the  Act  of  1006 
had  been  before  the  lower  courts, 
and  in  four  cases  had  been  held 
constitutional.  The  reasoning  of 
these  cases  upholds  the  claim  that 
Congress  has  the  power  to  enact 
a  statute  on  the  subject;  and  upon 
that  question  may  be  considered 
authoritative,  though,  as  applied 
to  the  ground  upon  which  that  act 
was  held  invalid,  they  cannot  be 
BO  considered.  They  are  Spain  v. 
St.  Louis,  etc.,  R.  Co.  151  Fed. 
Rep.  522,  from  the  Eastern  Dis- 
trict of  Arkansas,  decided  March 
13,  1907;  Snead  v.  Central 
Georgia  Ry.  Co.  151  Fed.  Rep. 
608,  from  the  Southern  District  of 
Georgia,  decided  March  25,  1907; 
Plummer  v.  Northern  Pacific  Ry. 
Co.  152  Fed.  Rep.  206,  from  the 
Western  District  of  Washington, 
decided  March  2,  1907,  and  Kel- 
ley  V.  Great  Northern  Railway  Co. 
152  Fed.  Rep.  211,  from  the  Dis- 
trict of  Minnesota,  decided  March 
11,  1907.  None  of  these  cases 
make  any  reference  to  any  of  the 
others. 

On  the  other  hand,  December  31, 
1906,  the  Circuit  Court  for  the 
Western  District  of  Kentucky  held 
the  statute  of  1906  void,  both  on 
the  ground  that  Congress  had  no 
power  to  legislate  upon  the  sub- 
ject-matter as  it  related  to  inter- 
state commerce,  and  also  that  it 
was  void  upon  the  ground  the  Su- 
preme Court  later  held  it  invalid. 
Brooks  v.  Southern  Pac.  Co.  148 
Fed.  Rep.  986.  A  similar  decision 
was  rendr-rcd  in  the  Circuit  Court 
for   the   Western  District  of  Ten- 


nessee. Howard  v.  Illinois  Cen- 
tral R.  Co.  148  Fed.  Rep.  997,  de- 
cided January  1,  1907.  These 
were  the  two  cases  appealed  from 
and  affirmed  as  the  Employer's  Li- 
ability Cases. 

For  cases  upholding  the  validity 
of  the  Safety  Appliance  statute.  See 
Johnson  v.  Railroad.  196  U.  S.  1; 
25  Sup.  Ct.  Rep.  158;  49  L.  Ed. 
363;  affirming  117  Fed.  Rep.  462; 
and  Schlemmer  v.  Railroad,  205 
U.  S.  1;  27  Sup.  Ct.  Rep.  407; 
51  L.  Ed.  88;  reversing  207  Pa. 
St.  198;  56  Atl.  Rep.  417.  See 
also  Chicago,  etc.,  R.  Co.  v. 
Voelker,  129  Fed.  Rep.  526;  S.  C. 
110  Fed.  Rep.  867. 

See  also  speech  of  Congressman 
Henry  of  Texas,  60  Cong.  Record, 
1st  Sess.,  p.  4427.  See  pp.  4428, 
4429,  4430  and  4431  for  report  of 
minority  holding  the  proposed  act 
of  1908  unconstitutional,  and  pp. 
4428,  4431,  4432,  4433  for  speech 
of  Congressman  Littlefield  of 
Maine,  holding  the  bill  unconsti- 
tutional. See  also  pp.  4434,  4435 
and  4436  ( inserted  in  this  work  as 
Appendix  B)  of  same  volume, 
holding  bill  valid.  For  dissenting 
views  from  the  majority  report  in 
favor  of  the  bill  of  Congressman 
Parker  of  New  Jersey,  see  pp.  4437 
and  4438  of  same  volume. 

'*  Employers'  Liability  Cases, 
207  U.  S.  463;  28  Sup.  Ct.  Rep. 
141;  52  L.  Ed.  297,  affirming 
Brooks  V.  Southern  Pac.  ^o.  148 
Fed.  Rep.  986,  and  Howard  v. 
Illinois  Central  Ry.  Co.  148  Fed. 
Rep.  997. 


CONSTITUTIONALITY    OF    STATUTE.  25 

were  so  blended  that  they  could  not  be  separated  by  the 
court,  and,  therefore,  the  whole  act  must  be  held  void.-''' 

§  14.     The  parts  of  the  Act  of  1906  rendering  it  invalid. — 

In  analyzing  the  statute  of  1906  and  pointing  out  the  clauses 
which  rendered  it  invalid,  and  why  it  must  be  considered  in- 
valid, Justice  White  called  particular  attention  to  the  fact 
that  the  act  did  not  confine  itself  to  the  business  of  interstate 
commerce,  but  sought  to  embrace  all  who  engaged  in  inter- 
state commerce  as  common  carriers,  regardless  of  the  fact 
that  the  servant  injured  may  have  had  nothing  whatever  to 
do  with  interstate  commerce  or  the  carrier  when  he  was  in- 
jured, may  not  have  been  working  in  connection  with  the  busi- 
ness of  interstate  commerce.  In  presenting  this  phase  of  the 
case,  he  said:  "From  the  first  section  it  is  certain  that  the 
act  extends  to  every  individual  or  corporation  who  may  en- 
gage in  interstate  commerce  as  a  common  carrier.  Its  all 
embracing  words  leave  no  room  for  any  other  conclusion. 
It  may  include,  for  example,  steam  railroads,  telegraph 
lines,  telephone  lines,  the  express  business,  vessels  of 
every  kind,  whether  steam  or  sail,  ferries,  bridges,  wagon 
lines,  carriages,  trolley  lines,  etc.  Now,  the  rule  which  the 
statute  establishes  for  the  purpose  of  determining  whether 
all  the  subjects  to  which  it  relates  are  to  be  controlled  by  its 
provisions  is  that  any  one  who  conducts  such  business  be  a 
'common  carrier  engaged  in  trade  or  commerce  in  the  Dis- 

"  Chief  Justice  Fuller  and  Jus-  prepared  to  agree  with  what  was 
tices  White,  Day,  Peckham  and  stated  in  the  opinion  delivered  by 
Brewer  adopted  this  view.  Jus-  Justice  White.  In  that  deter- 
tices  Moody,  Harlan,  McKenna  and  mination  Justices  Harlan,  McKen- 
Holmes  hold  that  the  invalid  por-  na,  Moody  and  Holmes  agreed, 
tions  can  be  separated  by  inter-  It  will  thus  appear  that  six  out 
pretation,  and  as  so  separated  it  of  the  nine  judges  concurrca  in 
is  valid.  .Just  ces  White  and  the  assumption  that  Congress 
Day  neld  that  Congress  had  the  ctnild  enact  a  valid  statute  con- 
power  to  enact  a  valid  statute  cerning  the  liability  of  employers 
upon  the  subject,  while  Justices  of  an  interstate  carrier  for  in- 
Brewer,  Peckham  and  Chief  Jus-  juries  occasioned  in  interstate  bus- 
tice  Fuller  declared  they  were  not  iness. 


26  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

trict  of  Columbia,  or  in  any  territory  of  the  United  States, 
or  between  the  several  states,'  etc.  That  is,  the  subjects 
stated  all  come  within  the  statute  when  the  individual  or 
corporation  is  a  common  carrier  who  engages  in  trade  or 
commerce  between  the  states,  etc.  From  this  it  follows  that 
the  statute  deals  with  all  the  concerns  of  the  individuals  or 
corporations  to  which  it  relates  if  they  engage  as  common 
carriers  in  trade  or  commerce  between  the  states,  etc.,  and 
does  not  confine  itself  to  the  interstate  commerce  business 
which  may  be  done  by  such  persons.  Stated  in  another  form, 
the  statute  is  addressed  to  the  individuals  or  corporations 
who  are  engaged  in  interstate  commerce  and  is  not  confined 
solely  to  regulating  the  interstate  commerce  business  which 
such  persons  may  do;  that  is,  it  regulates  the  persons  be- 
cause they  engage  in  interstate  commerce  and  does  not  alone 
regulate  the  business  of  interstate  commerce.  And  the  con- 
clusion thus  stated,  which  flows  from  the  text  of  the  act 
concerning  the  individuals  or  corporations  to  which  it  is 
made  to  apply,  is  further  demonstrated  by  a  consideration 
of  the  text  of  the  statute  defining  the  servants  to  whom  it 
relates.  Thus,  the  liability  of  a  common  carrier  is  declared 
to  be  in  favor  of  'any  of  its  employes.'  As  the  word  'any' 
is  unqualified,  it  follows  that  liability  to  the  servant  is  co- 
extensive with  the  business  done  by  the  employers  whom  the 
statute  embraces;  that  is,  it  is  in  favor  of  any  of  the  em- 
ployes of  all  carriers  who  engage  in  interstate  commerce. 
This  also  is  the  rule  as  to  the  one  who  otherwise  would 
be  a  fellow  servant,  by  whose  negligence  the  injury  or  death 
may  have  been  occasioned,  since  it  is  provided  that  the  right 
to  recover  on  the  part  of  any  servant  will  exist,  although  the 
injury  for  which  the  carrier  is  to  be  held  resulted  from  'the 
negligence  of  any  of  its  officers,  agents  or  employes.'  The 
act  then  being  addressed  to  all  common  carriers  engaged  in 
interstate  commerce,  and  imposing  a  liability  upon  them  in 
favor  of  any  of  their  (imployes,  without  qualification  or  re- 
striction  as  to  the  business  in   which  the  carriers   or  their 


CONSTITUTIONALITY   OF    STATUTE.  27 

employes  may  be  engaged  at  the  time  of  the  injury,  of  neces- 
sity includes  subjects  wholly  outside  of  the  power  of  con- 
gress to  regulate  commerce.  "Without  stopping  to  consider 
the  numerous  instances  where  although  a  common  carrier  is 
engaged  in  interstate  commerce  such  carrier  may  in  the 
nature  of  things  also  transact  business  not  interstate  com- 
merce, although  such  local  business  may  indirectly  be  related 
to  interstate  commerce,  a  few  illustrations  showing  the  opera- 
tion of  the  statute  as  to  matters  wholly  independent  of  inter- 
state commerce  will  serve  to  make  clear  the  extent  of  the 
power  which  is  exerted  by  the  statute.  Take  a  railroad 
engaged  in  interstate  commerce,  having  a  purely  local  branch 
operated  wholly  within  a  state.  Take  again  the  same  road 
having  shops  for  repairs,  and  it  may  be  for  construction 
work  as  well  as  a  large  accounting  and  clerical  force,  and 
having,  it  may  be,  storage  elevators  and  warehouses,  not  to 
suggest  besides  the  possibility  of  its  being  engaged  in  other 
independent  enterprises.  Take  a  telegraph  company  engaged 
in  the  transmission  of  interstate  and  local  messages.  Take 
an  express  company  engaged  in  local  as  w^ell  as  in  interstate 
business.  Take  a  trolley  line  moving  wholly  within  a  state 
as  to  a  large  part  of  its  business  and  yet  as  to  the  remainder 
crossing  the  state  line. 

As  the  act  thus  includes  many  subjects  wholly  beyond  the 
power  to  regulate  commerce  and  depends  for  its  sanction 
upon  that  authority,  it  results  that  the  act  is  repugnant  to 
the  Constitution,  and  cannot  be  enforced  unless  there  be 
merit  in  the  propositions  advanced  to  show  that  the  statute 
may  be  saved. ' '  ^- 

§  15.  Congress  can  only  legislate  concerning  interstate 
business. — In  the  case  in  the  Supreme  Court,  an  endeavor 
was  made  to  uphold  the  Act  of  1906  on  the  ground  that 
"any  one  who  engages  in  interstate  commerce  thereby  sub- 

32  Employers'     Liability     Oases,  And  as  to  the  District  of  Cohun- 

207   U.   S.  463;    28   Sup.   Ct.  Kep.  bia:     Philadelphia,  B.  &  W.  R.  Co. 

143;  52  L.  Ed.  297.  v.  Tucker,  35  App.  D.  C.  123;  Mc- 

The   Act  of    1906   was   valid   as  Namara    v.    Washington   Terminal 

to  the  territories.     El  Paso  &  N.  Co.   35   App.   D.   C.   230;    Hyde  v. 

E.  R.  Co.  V.  Gutierrez,  215  U.  S.  Southern  Ry.   Co.   31   App.   D.   C. 

87:    30    Sup.    Ct.    21;    54    L.    Ed.  466;  36  Wash.  L.  Rep.  374;  Gold- 

106,  affirming   102   Tex.   378;    117  stein  v.  Baltimore  &  O.  R.  Co.  37 

S    W    426  •    Atchison,   T.   &   S.   F.  Wash.  L.  Rep.  2.    It  is  not  vahd  for 

Ry.  Co.  V.  Mills   (Tex.  Civ.  App.),  any  purpose  within  the  states.     Chi- 

1A9  Q    W    dSO  cago  I.  &  L.  R.  Co.  V.  Hackett,  22s 

581,  affirming  170  111.  App.  140. 


28  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

mits  all  his  business  concerns  to  the  regulating  of  congress." 
To  this  claim  the  court  said:  "To  state  the  proposition  is 
to  refute  it.  It  assumes  that  because  one  engages  in  inter- 
state commerce  he  thereby  endows  congress  with  power  not 
delegated  to  it  by  the  Constitution ;  in  other  words,  with  the 
right  to  legislate  concerning  matters  of  purely  state  concern. 
It  rests  upon  the  conception  that  the  Constitution  destroyed 
that  freedom  of  commerce  which  it  was  the  purpose  to  pre- 
serve, since  it  treats  the  right  to  engage  in  interstate  com- 
merce as  a  privilege  which  cannot  be  availed  of  except  upon 
such  conditions  as  congress  may  prescribe,  even  although  the 
conditions  would  be  otherwise  beyond  the  power  of  congress. 
It  is  apparent  that  if  the  contention  were  well  founded  it 
would  extend  the  power  of  congress  to  every  conceivable 
subject,  however  inherently  local,  would  obliterate  all  the 
limitations  of  power  imposed  by  the  Constitution,  and  would 
destroy  the  authority  of  the  states  as  to  all  conceivable  matters 
which  from  the  beginning  have  been,  and  must  continue  to 
be,  under  their  control  so  long  as  the  Constitution  endures."  ^^ 


"  Employers'  Liability  Cases,  207  U.  S.  463;  28  Sup.  Ct.  Rep.  143;  52  L. 
Ed.  297.  Illinois  Central  R.  Co.  v.  Behrens,  233  U.  S.  473;  34  Sup.  Ct.  646;  58 
L.  Ed.  1051. 


CONSTITUTIONALITY    OF    STATUTE,  29 

§  16.  Interrelation  of  interstate  and  intrastate  commerce 
as  effecting  Constitutionality  of  Act. — The  statute  is  not 
invalid,  though,  merely  because  it  nia}^  also  affect  interstate 
commerce.  "Considering  the  status  of  the  railroad  as  a 
highway  for  both  interstate  and  intrastate  commerce." 
said  Justice  Van  Devanter,  "the  interdependence  of  the 
two  classes  of  traffic  in  point  of  movement  and  safety,  the 
practical  difficulty  in  separating  and  dividing  the  general 
work  of  the  switching  crew,  and  the  nature  and  extent  of 
the  power  confided  to  Congress  by  the  commerce  clause  of 
the  constitution,  we  entertain  no  doubt  that  the  liability 
of  the  carrier  for  injuries  suffered  by  a  member  of  the 
crew  in  the  course  of  its  general  work  was  subject  to 
regulation  by  Congress,  whether  the  particular  service 
being  performed  at  the  time  of  the  injury,  isolatedly  con- 
sidered, was  in  interstate  or  intrastate  commerce.  "^^"^ 

§  17.  Effect  of  Act  of  1908  on  State  Legislation.— A  ques- 
tion of  great  importance  is,  "What  is  the  effect  of  the  Act 
of  1908  upon  state  legislation,  where  the  business  of  inter- 
state commerce  is  involved?"  Before  the  passage  of  either 
the  Act  of  1906  or  that  of  1908,  many  states  had  enacted 
statutes  which  applied  in  terms  to  carriers  engaged  in  inter- 
state commerce,  and  even  to  carriers  when  engaged  in  the 
business  of  interstate  commerce ;  recoveries  had  been 
allowed  by  employes  in  many  instances  where  they  received 
their  injuries  while  engaged  in  such  business.  As  congress 
had  not  yet  legislated  upon  the  subject,  fewer  difficulties 
were  presented  than  there  are  now.  The  legislation  of  1908 
is  so  much  broader  in  many  of  its  most  vital  provisions  that 

""Illinois  Central  R.  Co.  v.  64G;  58  L.  Ed.  1051;  Connole  v. 
Behrens,  233  U.  S.  473;  34  Sup.  Ct.      Norfolk  &  W.  Hy.  Co.  216  Fed.  823. 


30  FEDERAL,    EMPLOYERS'    LIABILITY    ACT. 

few  occasions  will  probably  present  themselves;  nevertheless, 
the  question  is  an  important  one.  This  question  under  the 
Act  of  1906  was  discussed  but  not  decided.^*  No  question 
seriously  arises  where  a  state  statute  and  the  Act  of  1908 
cover  the  same  incident  or  injury :  that  the  latter  will  control 
and  the  former  must  give  way.^^  There  is  a  line  of  cases 
which  hold  that  where  a  state  statute  amounts  to  the  regu- 
lation of  interstate  commerce,  yet  local  in  its  character,  it 
can  be  sustained  by  reason  of  the  absence  of  congressional 
legislation  in  respect  thereto.^*  In  one  case,  speaking  of 
quarantine  regulations,  the  Supreme  Court  of  the  United 
States  has  said:  "It  may  be  conceded  that  whenever  con- 
gress shall  undertake  to  provide  for  the  commercial  cities  of 
the  United  States  a  general  system  of  quarantine,  or  shall 
confide  the  execution  of  the  details  of  such  system  to  a 
National  Board  of  Health,  or  to  local  boards,  as  may  be 
found  expedient,  all  state  laws  on  the  subject  will  be  abro- 
gated, at  least  so  far  as  the  two  are  inconsistent."^^  In 
another  case  it  was  said:  "Generally,  it  may  be  said  in 
respect  to  laws  of  this  character  that,  though  resting  upon 
the  police  power  of  the  state,  they  must  yield  whenever  con- 
gress, in  the  exercise  of  the  powers  granted  to  it,  legislates 
upon  the  precise  subject-matter,  for  that  power,  like  all  other 

^Hall  V.   Chicago,  etc.,   Ry.   Co.  parte   McNiel,    13    Wall.    236;    20 

149  Fed.  Rep.  564.  L.    Ed.    624:     Mobile    County    v. 

»(;ulf,    etc.,    Ry    Co.    v.    Hefley,  Kimball,    102    U.    S.    691;    26    L. 

158   U.   S.   98;    15    Sup.    Ct.   Rep.  Ed.  238,  affirming:  3   Woods,  555; 

802;   39  L.   Ed.  910.  Fed.  Cas.  No.  7,774;  Packet  Co.  v. 

"Such  are  Railroad  Co.  v.  Ful-  Cattlesburg,    105    U.    S.    559;    26 

ler,  17  Wall.  560;   21  L.  Ed.  710;  L.    Ed.    1;    Transportation    Co.   v. 

Wilson    V.    Blackbird,    etc.,    Co.    2  Rarkersburg,    107     U.    S.    691;    2 

Pet.  245;   7  L.  Ed.  412;   Cooley  v.  Sup.  Ct.  Rep.  732:  27  L.  Ed.  584; 

Philadelphia     Port     Wardens,     12  Escanaba  Co.  v.  Chicago,  107  U.  S. 

How.   299;    13    L.   Ed.   996;    Penn-  678;   Morgan  v.  Louisiana,   118  U. 

sylvania  v.  Wheeling,  etc..  Bridge,  S.  455;   6  Sup.  Ct.  Rep.  1114;   30 

18    How.    421;     15    L.    Ed.    435;  U  Ed.  237;  affirming  36  La.  Ann. 

Brig    James    firay    v.    Ship    John  606. 

Eraser,   21    How.    184;    16    L.   Ed.  "Morgan    v.    Louisiana,    supra, 

106;     rjilman    v.    Philadelphia,    3  quoted  in  Gulf,  etc.,  R.  Co.  v.  Hef- 

Wall.    713;     18    L.    Ed.    90;     Ex  ley,  supra. 


CONSTITUTIONALITY    OF    STATUTE.  ^\ 

reserved  powers  of  the  states,  is  subordinate  to  those  terms 
conferred  by  the  Constitution  upon  the  nation.  "^^  In  an 
earlier  case  it  was  said:  "It  is  said,  however,  that,  under 
the  decisions  of  this  court,  there  is  a  kind  of  neutral  ground, 
especially  in  that  covered  by  the  regulation  of  commerce, 
which  may  be  occupied  by  the  state,  and  its  legislation  be 
valid  so  long  as  it  interferes  with  no  act  of  congress  or  treaty 
of  the  United  States.  Such  a  proposition  is  supported  in  the 
passenger  cases,^^  by  the  decisions  of  this  court  in  CooJey 
V.  Tihe  Board  of  Wardens,*^  and  by  the  cases  of  Crandall  v. 
Nevada*^  and  by  Gilmer  v.  Philadelphia.*^  But  this  doc- 
trine has  always  been  controverted  in  this  court,  and  has  sel- 
dom, if  ever,  been  stated  without  dissent.  These  decisions, 
however,  all  agree,  that  under  the  commerce  clause  of  the 
Constitution,  or  within  its  compass,  there  are  powers,  which, 
from  their  nature,  are  exclusive  in  Congress;  and,  in  the 
case  of  Cooley  v.  The  Board  of  Wardens,*^  it  was  said,  that 
'whatever  subjects  of  this  power  are  in  their  nature  national, 
or  admit  of  one  uniform  system  or  plan  of  regulation,  may 
justly  be  said  to  be  of  such  a  nature  as  to  require  exclusive 
legislation  by  Congress.'  A  regulation  which  imposes  oner- 
ous, perhaps  impossible,  conditions  on  those  engaged  in  active 
commerce  with  foreign  nations,  must  of  necessity  be  national 
in  its  character. ' '  ** 

§  18.  Effect  of  Act  of  1908  on  State  Legislation,  con- 
tinued.— The  cases  from  which  these  quotations  are  made 
do  not  necessarily  settle  the  question ;  for  the  subject  of 
interstate  commerce  under  the  decisions  has  greatly  expanded 
in  the  last  thirty  years.  Many  of  the  cases  discussing  the 
subject  have  resulted  in  distinctions  being  drawn  concerning 
what  are  and  what  are  not  acts  of  interstate  commerce;  and, 

««Gulf,   etc.,  Ry.  Co.  v.  Hefley,  *=3  Wall.  713. 

supra.  *'  Supra. 

^n  How.  283.  "Henderson  v.  Mayor,  92  U.  S. 

*''12  How.  299.  259;    23  L.  Ed.  543. 

"  6  Wall.  35. 


32  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

of  course,  in  all  instances  where  the  Supreme  Court  of  the 
United  States  reached  the  conclusion  that  a  state  statute  did 
not  interfere  with  or  was  not  a  regulation  of  commerce  be- 
tween the  states,  no  further  question  was  presented  of  the 
power  of  a  state  to  legislate  upon  questions  of  interstate  com- 
merce. In  1886  was  decided  a  case  of  far-reaching  conse- 
quences, and  which  called  forth  legislation  by  Congress  upon 
the  subject  of  interstate  commerce.  A  statute  of  Illinois 
undertook  to  regulate  shipments  over  railroads  where  they 
were  made  both  solely  within  the  state  as  well  as  beyond  its 
borders;  and  the  court  held  so  much  of  it  as  related  to  ship- 
ments beyond  the  state  lines  was  void,  because  it  was  legis- 
lation upon  a  subject  the  regulation  of  which  had  been 
confided  solely  to  Congress.  This  was  a  decision  rendered 
before  Congress  had  legislated  upon  the  subject-matter  of  the 
Illinois  statute.^^  Eight  years  later  the  doctrine  of  this  case 
was  applied  to  a  bridge  between  two  states,  holding  that 
one  of  the  states  could  not  regulate  the  tolls  for  passengers 
over  it,  for  the  reason  that  only  Congress  could  regulate 
them.*"  But  in  considering  this  subject,  it  must  not  be  over- 
looked that  the  interstate  commerce  law  of  the  Constitution 
does  not  prohibit  a  state  exercising  its  police  power  for  the 

*^  Wabash  R.  Co.  v.  Illinois,  118  a   tax  upon   the   instrumentalities 

U.  S.  557;   7  Sup.  Ct.  Rep.  4;   30  of    interstate    commerce,    even    in 

L.    Ed.    244 ;     reversing     105    111.  the  absence  of  congressional  legis- 

236.  lation.     State   Freight  Tax   Cases, 

*«  Covington,  etc.,  Co.  v.  Ken-  15  Wall.  232;  21  L.  Ed.  146;  re- 
tucky.  154  U.  S.  204;  14  Sup.  Ct.  versing  02  Pa.  St.  286;  1  Am. 
Rep.  1087;  38  L.  Ed.  962;  re-  Rep.  399;  Robbins  v.  Shelby  Tax- 
versing  15  K.  L.  Rep.  320;  22  S.  ing  District,  120  U.  S.  489;  7 
W.  Rep.  851.  Sup.  Ct.  Rep.  592;   30  L.  Ed.  694, 

A      state      cannot      discriminate  reversing    13    Leo      303;     Western 

against     liquors     being     imported  Union  Tel.   Co.   v.   Pendleton,    122 

into    it   so    long    as    it    recognizes  \\  S.  347;   7  Sup.  Ct.   Rep.   1126; 

their    sale,   manufacture   and   use.  ',]()  L.  Ed.   11S7:   reversing  95  Tnd. 

Scott    V.    Lkmald.    165    U.    S.    .58;  12;    48   Am.    Rep.   692;    Telegraph 

17  Sup.   Ct.   Rep.   262;   41   L.   Ed.  Co.  v.  Texas,   105  U.  S.  460;   Pen- 

648;  Vance  v.  Vanderc(M)k,   170  U.  sacola  Tel.   Co.  v.   Western  Union 

S.  438;    18  Sup.  Ct.   Rep.   674;   42  Tel.    Co.    96    L.    S.    1;    24    L.    Kd. 

L.  Ed.   1100.  70S;     affirming     2     Woods,     643; 

Of   course,   a   state   cannot    levy  Fed.  Cas.  No.  10,900. 


COXSTITUTIONALITY    OF    STATUTE.  33 

safety  and  health  of  its  own  inhabitants.  Thus,  a  statute 
concerning  color-blindness  of  railroad  engineers  is  valid,  al- 
though they  may  be  engaged  in  running  locomotives  hauling 
trains  from  one  state  to  another,  on  the  ground  that  it  was 
the  plain  duty  for  a  state  to  make  provisions  for  the  safety 
of  its  inhabitants.*^  So  statutes  respecting  crossings  of  rail- 
roads and  highways  of  railway  companies  engaged  in  inter- 
state commerce  are  valid ;  so  are  statutes  regulating  the  speed 
of  trains  within  municipalities.*^  So  are  statutes  requiring 
guard  posts  on  railroad  trestles  and  bridges.*^  But  notwith- 
standing these  decisions,  it  is  an  accepted  rule  that  in  all 
instances  where  freedom  of  commerce  between  the  states  is 
directly  involved,  the  failure  of  Congress  to  enact  a  statute 
fitting  a  particular  instance  is  to  be  taken  as  an  indication 
of  the  will  of  that  body  that  such  commerce  should  remain 
free  and  untrammeled ;  and  in  such  instances  attempted  state 
legislation  on  such  particular  instances  is  void.  Yet  notwith- 
standing this  general  rule,  where  Congress  enacted  a  law 
making  it  unlawful  to  transport  known  diseased  cattle  from 
one  state  to  another,  a  state  statute  imposing  a  civil  liabil- 
ity upon  a  railway  company  which  brought  diseased  cattle 
into  the  state,  and  another  statute  that  made  it  a  finable  of- 
fense to  bring  into  the  state  cattle  which,  within  ninety  days 
before  their  importation,  had  herded  with  stock  having  a 
contagious  disease,  were  held  valid;  for  the  state  had  not 
assumed  charge  of  their  transportation  but  was  aiming  to 
protect  its  own  people  and  their  property  against  the  danger 
of  contact  with  diseased  stock.  But  it  was  said  in  substance 
that  if  the  entire  subject  of  transportation  of  diseased  stock 


*'    Smith  V.  Alabama,  124  U.  S.  584;   20  Sup.  Ct.  Eep.  819;   44  L. 

465;   8   Sup.   Ct.   Rep.   564;   31   L.  Ed.   897;    affirming   60   Kan.   251; 

Ed.    508,    affirming    76    Ala.    69;  56  Pac.   Rep.    133. 
Nashville,  etc.,  R.  Ck).  v.  Alabama,  "  New  York,  etc.,  R.  Co.  v.  New 

128    U.    S.    96;    9    Sup.    Ct.    Rep.  York,  165  U.  S.  628;   17  Sup.  Ct. 

28;    32    L.   Ed.    352;    affirming   83  Rep.   418;    41    L.   Ed.   853;    attirm- 

Ala.  71;   3  So.  Rep.  702.  ing  142  N.  Y.  646;   37  N.  E.  Rep. 

«Eib    V.    Morasch,     177    U.    S.  568. 


34 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


from  one  state  to  another  had  been  taken  over  by  Congress 
and  a  system  devised  by  which  such  stock  could  be  excluded 
or  their  transportation  so  regulated  as  not  to  endanger  the 
inhabitants  or  property  of  the  receiving  state,  all  local  regu- 
lations would  cease  and  remain  suspended  until  the  Federal 
statute  was  repealed  and  the  Federal  control  abandoned.^'^ 

§  19.  Result  of  decisions. — The  Federal  Act  covers  every 
instance  of  any  person  suffering  an  injury  from  negli- 
gence while  he  is  employed  "in  commerce  between  any 
of  the  several  states  or  territories,  or  between  any  of  the 
states  and  territories,  or  between  the  District  of  Columbia 
and  any  of  the  states  and  territories,  or  between  the  District 
of  Columbia  or  any  of  the  states  and  territories  and  any 
foreign  nation,"  and  all  state  regulations  are  void,  because 


5"  Oliver  v.  Northern  Pac.  Ry.  Co. 
196  Fed.  432.  It  is  clear,  from  the 
debates,  that  many  of  the  Senators 
entertained  the  notion  that  the  act 
would  nullify  all  state  legislation  upon 
the  same  subject  so  far  as  it  related  to 
employees  engaged  in  interstate  com- 
merce. In  discussing  the  subject, 
Senator  Bacon  said:  "Aly  proposition 
is  this — and  as  a  proposition  of  law 
I  do  not  think  I  can  possibly  be  mis- 
taken in  it — that  whenever  the  Con- 
gress of  the  United  States  has  juris- 
diction to  enact  a  law  for  the  regu- 
lation of  interstate  commerce,  it 
necessarily  nuUifies  the  law  of  a  state 
passed  upon  the  same  subject,  and 
that  when  you  pass  this  law  no  law 
of  any  state  prescribing  the  rules  of 
liabiUty  for  an  employee  engaged  in 
interstate  commerce  is  any  longer  of 
any  force  or  effect.  That  is  necessar- 
ily so,  and  whether  it  can  be  enforced 
in  a  state  court  or  in  a  federal  court, 
the  law  thereafter  must  be  this  law 
and  no  other  law.  The  day  it  is  pas- 
sed every  state  law  which  prescribes 
a  rule  of  liaiMlity  for  an  employee  en- 
gaged in  interstate  commerce  is  an- 
nulled, and  it  is  the  same  as  if  it  had 
been  the  repeal  of  the  law  of  the 
state." 

Senator  Bevoridge:  "Our  power  is 
exclusive  when  we  act." 

Senator  Bacon:  "Absolutely  so. 
There  is  no  doubt  aV)out  that  in  the 
world.  It  is  only  a  question  of  juris- 
diction to  act." 


Senator  Beveridge:    "Certainly." 

Senator  Bacon:  "If  we  have  the 
jurisdiction  to  act,  and  do  act,  the 
federal  law  is  supreme,  and  it  nullifies 
every  state  law  on  the  subject." 

Senator  Clay:  "My  idea  was  that 
when  the  bill  should  become  a  law 
all  laws  in  the  state  fixing  the  rule  of 
liability  of  common  carriers  engaged 
in  interstate  commerce  would  be 
superseded  by  virtue  of  this  law,  and 
whenever  an  employee  proceeds 
against  a  railway  company  for  in- 
juries suffered,  he  must  look  to  this 
statute  to  fix  the  rule  of  liability,  and 
not  to  the  statute  of  the  state." 

Senator  Borah:  "If  a  party  is  en- 
gaged at  the  time  of  his  injury  in 
interstate  commerce,  his  rights  and 
obligations  must  undoubtedly  be 
settled  by  the  law  which  we  shall  pass. 
If  he  should  be  engaged  in  state  com- 
merce or  interstate  commerce,  the 
state  law  would  obtain.  In  other 
words,  this  proposed  law  would  only 
annul  the  state  law  in  so  far  as  it 
affects   interstate    commerce." 

Senator  Clay:  "I  think  the  Senator 
is  eminently  correct.  The  statute  of 
Georgia,  fixing  a  liability  against 
railroad  companies  in  favor  of  em- 
ployees relating  to  commerce  within 
the  state  would  not  be  changed  by  the 
passage  of  this  statute.  It  would 
simply  affect  the  employees  engaged 
at  the  time  of  the  accident  in  inter- 
state commerce.  I  do  not  think  there 
is  any  question  about  that."  60 
Cong.  Record,  1st  Sess.,  pp.  4528,4529. 


CONSTITUTIONALITY    OF    STATUTE. 


35 


Congress  has  manifested  a  desire  and  has  covered  the  whole 
subject  so  far  as  was  the  intention  of  Congress  that  such  an 
employe  should  have  a  right  of  action.  The  entire  question 
resolves  itself  into  a  matter  of  construction.  A  careful  read- 
ing of  the  statute  shows  that  Congress  has  covered  the  en- 
tire subject  of  liability  of  an  interstate  railroad  company 
for  negligence  to  its  employe  engaged  in  interstate  com- 
merce ;  and  that  question  has  been  settled  by  many  deci- 
sions.^^ 

§  20.     Effect  of  repeal  of  federal  statute. — The  question, 
of  course,  is  a  speculative  one,  but  will  bear  allusion  to  in 


"  Taylor  v.  Taylor,  232  U.  S.  363 
34  Sup.  Vt.  350;  58  L.  Ed.  638;  Smith 
V.  Camas  Prarie  Ry.  Co.  216  Fed.  799 
Thomas  v.  Chicago  &  N.  W.  Ry.  Co 
202  Fed.  766;  The  Pasaic,  190  Fed 
694;  DeAtley  v.  Chesapeake  &  O 
R.  Co.  201  Fed.  591;  Kelly  v.  Chesa- 
peake &  O.  R.  Co.  201  Fed.  602 
Delaware,  I.  &  W.  R.  Co.  v.  Troxell 

188  Fed.  842;  Michigan  Central  R 
Co.  V.  Vreeland,  227  U.  S.  59;  33 
Sup.  Ct.  192;  57  L.  Ed.  417,  reversing 

189  Fed.  495;  Missouri,  K.  &  T.  Ry. 
Co.  V.  Wulf,  226  U.  S.  570;  33  Sup. 
Ct.  135;  57  L.  Ed.  274,  affirming  192 
Fed.  919;  113  C.  C.  A.  665;  Grand 
Trunk  W.  Ry.  Co.  v.  Lindsay,  233 
U.  S.  42;  34  Sup.  Ct.  581 ;  58  L.  Ed.  828, 
affirming  201  Fed.  836;  120  C.  C.  A. 
166;  Seaboard  Air  Line  R.  Co.  v. 
Horton,  233  U.  S.  492;  34  Sup.  Ct. 
635;  58  L.  Ed.  — ,  reversing  162  N.  C. 
424;  78  S.  E.  494;  North  Carolina 
R.  Co.  V.  Zackary,  232  U.  S.  248; 
34  Sup.  Ct.  305;  58  L.  Ed.  591,  revers- 
ing 156  N.  C.  496;  72  S.  E.  858; 
Mondu  V.  N.  Y.  N.  H.  &  H.  R.  R. 
Co.  223  U.  S.  1;  32  S.  C.  169;  56  L. 
Ed.  327;  38  L.  R.  A.  (N.  S.)  44;  1  N. 
C.  C.  875,  reversing  82  Conn.  352; 
73  Atl.  754;  St.  Louis,  S.  F.  &  T.  R. 
Co.  V.  Scale,  229  U.  S.  156;  33  Sup. 
Ct.  651;  57  L.  Ed.  1129;  Wabash  R. 
Co.  V.  Hayes,  234  U.  S.  86;  34  Sup. 
Ct.  729;  58  L.  Ed.  1226,  affirming  180 
111.  App.  511;  St.  Louis,  etc.,  Ry.  v. 
Hesterly,  228  U.  S.  702;  33  Sup.  Ct. 
703;  57  L.  Ed.  1031,  reversing  94 
Ark.  240;  135  S.  W.  874;  Fithian  v. 
St.  Louis  &  S.  F.  Ry.  Co.  188  Fed.  842; 
Copper  River  &  N.  W.  Ry,  Co.  v. 
Heney,  211  Fed.  459;  Cory  v.  Lake 
Shore  &  M.  S.  Ry.  Co.  208  Fed.  847; 
Oliver  v.  Northern  Pac.  Ry.  Co.  196 
Fed.  432.  Many  states  have  decided 
the  same  way.  Niles  v.  Central  Vt. 
Ry.  Co.  87  Vt.  356;  89  Atl.  629; 
Louisville  &  N.  R.  Co.  v.  Kemp,  140 
Ga.  657;  79  S.  E.  558;  Missouri,  K.  & 


T.  Ry.  Co.  V.  Lenahan,  39|Okla.  283; 
135  Pac.  383;  Penny  v.  New  Orleans 
Great  Northern  R.  Co.  135  La. 
962;  66  So.  313;  Wagner  v.  Chicago 
&  A.  R.  Co.  265  111.  245;  106  N.  E. 
809;  VandaUa  R.  Co.  v.  Stringer  (Ind.) 
106  N.  E.  865;  Shannon  v.  Boston  & 
M.  R.  Co.  (Vt.)  92  Atl.  167;  Cole  v. 
Atchison  &  S.  F.  Ry.  Co.  92  Kan. 
132;  139  Pac.  1177;  La  Casse  v. 
New  Orleans,  T.  &  M.  R.  Co.  135 
La.  129;  64  So.  1012;  Dungan  v.  St. 
Louis  &  S.  F.  R.  Co.  178  Mo.  App. 
164;  165  S.  W.  1116;  Vaughan  v. 
St.  Louis  &  S.  F.  R.  Co.  177  Mo. 
App.  155;  164  S.  W.  144;  Southern  Ry. 
Co.  V.  Jacobs,  116  Va.  — ;  81  S.  E.  99; 
Vickery  v.  New  London  Northern 
Ry.  Co.  87  Conn.  634;  89  Atl.  277; 
Missouri  K.  &  T.  Ry.  Co.  v.  Rentz 
(Tex.  Civ.  App.)  162  S.  W.  959; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Sadler 
(Tex.  Civ.  App.)  149  S.  W.  1188; 
Melzner  v.  Northern  Pac.  Ry.  Co. 
46  Mont.  162;  127  Pac.  1002;  Rich  v. 
St.  Louis  &  S.  F.  R.  Co.  166  Mo.  App. 
379;  148  S.  W.  1011;  Rivera  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.  (Tex. 
Civ.  App.);  149  S.  W.  223;  South 
Covington  &  C.  St.  Ry.  Co.  v.  Finan, 
153  Ky.  340;  155  S.  W.  742;  Illinois 
Cent.  R.  Co.  v.  Dohertv,  153  Ky. 
363;  155  S.  W.  1119;  Eastern  Ry.  Co. 
v.  Ellis  (Tex.  Civ.  App.)  153  S.  W. 
701;  Houston  &  T.  C.  Ry.  Co.  v. 
Bight  (Tex.  Civ.  App.)  156  S.  W.  304; 
Burnett  v.  Atlantic  Coast  Line  R. 
Co.  163  N.  C.  186;  79  S.  E.  414;  Erie 
R.  Co.  V.  Welsh  (Ohio  St.)  105  N.  E. 
189;  Burtnett  v.  Erie  R.  Co.  159  App. 
Div.  712;  144  N.  Y.  Supp.  969;  Nor- 
ton v.  Erie  R.  Co.  163  App.  Div.  468; 
148  N.  Y.  Supp.  771;  Jones  v.  Charles- 
ton &  W.  C.  Ry.  Co.  98  S.  C.  197; 
82  S.  E.  415;  Bramlett  v.  Southern 
Ry.  Co.  98  S.  C.  319;  82  S.  E.  501; 
Armbruster  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.  (Iowa)  147  N.  W.  337; 
Bradbury  v.  Railway  Co.  149  Iowa 


36 


FEDERAL   EMPLOYERS'    LIABILITiT    ACT. 


this  connection.  What  would  be  the  effect  of  a  repeal  of  this 
federal  statute?  The  Supreme  Court  of  the  United  States 
has  in  a  way  answered  this  question  when  it  declared  that 
the  Federal  Act  must  remain  supreme  "until  Congress  shall 
again  remit  the  subject  to  the  reserved  police  power  of  the 
states."^  In  a  number  of  cases  it  has  been  pointed  out  that 
the  true  effect  of  the  Federal  Act  is  merely  to  suspend  ex- 
isting state  legislation  and  render  it  inoperative  so  long  as 
it  remains  in  force.- 


51;  128  N.  W.  1;  40  L.  R.  A.  (N.  S.) 
684;  Bouchard  v.  Central  Vt.  Ry. 
Co.  87  Vt.  399;  89  Atl.  475;  White  v. 
Central  Vt.  Ry.  Co.  87  Vt.  330;  89  Atl. 
618;  Niles  v.  Central  Vt.  Rv.  Co.  87 
Vt.  356;  89  Atl.  629;  Hogerty  v. 
Philadelphia  &  R.  Ry.  Co.  (Pa.)  91 
Atl.  854;  Louisville  &  N.  R.  Co.  v. 
Strange,  156  Ky.  439;  161  S.  W.  239; 
Moliter  v.  Wabash  R.  Co.  180  Mo. 
App.  84;  168  S.  W.  250;  Hardrick  v. 
Wabash  R.  Co.  181  Mo.  App.  156; 
168  S.  W.  328;  Mcintosh  v.  St.  Louis 
&  S.  F.  R.  Co.  182  Mo.  App.  288; 
168  S.  W.  821;  Flanders  v.  Georgia, 
S.  &  F.  Ry.  Co.  (Fla.)  67  So.  68; 
Lauer  v.  Northern  Pac.  Ry.  Co. 
(Wash.)  145  Pac.  606;  Shannon  v. 
Boston  &  M.  R.  (N.  H.)  92  Atl.  167; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Lenahan, 
39  Okla.  283;  135  Pac.  383;  Charleston 
&  W.  C.  Ry.  Co.  V.  Anchors,  10  Ga. 
App.  322;  73  S.  E.  551;  Southern  Ry. 
Co.  V.  Howerton  (Ind.)  105  N.  E. 
1025;  Kansas  City,  M.  &  O.  Ry.  Co. 
V.  Pope  (Tex.  Civ.  App.)  1.52  S.  W. 
185;  Eastern  Ry.  Co.  v.  ElUs  (Tex. 
Civ.  App.)  1.53  S.  W.  701;  De  Rivera 
V.  Atchison,  T.  &  S.  F.  Ry.  Co.  (Tex. 
Civ.  App.)  149  S.  W.  223;  Gee  v. 
Lehigh  V.  R.  Co.  163  App.  Div.  274; 
148  N.  Y.  Supp.  882;  St.  Louis,  S.  F. 
&  T.  R.  Co.  V.  Scale,  229  U.  S.  156; 
33  Sup.  Ct.  651;  57  L.  Ed.  1129, 
reversing  (Tex.  Civ.  App.)  148  S.  W. 
1099;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Hesterly,  228  U.  S.  702;  33  Sup.  Ct. 
702;  57  L.  Ed.  1031,  reversing  98  Ark. 
240;  135  S.  W.  874;  Hearst  v.  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  (Mo.  App.) 
173  S.  W.  86;  Rich  v.  St.  Louis  &  S. 
F.  R.  Co.  163  Mo.  App.  379;  148  S. 
W.  1011;  Thompson  v.  Wabash  R. 
Co.  (Mo.)  171  S.  W.  364;  Ex  parte 
Atlantic  Coast  Line  R.  Co.  (Ala.)  67 
So.  256;  Easter  v.  Virginian  Ry.  Co. 
(W.  Va.)  86  S.  E.  37. 

Even  a  state  statute  enacted  prior 
to  this  federal  statute  must  give  way 
to  the  latter;  for  the  power  of  (/ongress 
over  the  subject  is  in  no  way  afTectcd 
by  its  inaction.  Rich  v.  St.  Louis  & 
S.  F.  R.  Co.  163  Mo.  App.  379;  148 
S.  W.  1011. 


For  other  cases  holding  that  the 
action  must  be  based  on  the  Federal 
Act,  and  can  not  be  based  on  a  state 
statute  or  at  common  law,  see  Mc- 
Chesney  v.  Illinois  Central  R.  Co. 
197  Fed.  85;  Hawkins  v.  St.  Louis  & 
S.  F.  R.  Co.  (Mo.  App.);  174  S.  W. 
129;  Atlantic  Coast  Line  R.  Co.  v. 
Jones  (Ala.  App.)  67  So.  632;  Kam- 
boris  V.  Oregon  &  Wash.  R.  &  Nav. 
Co.  (Ore.)  146  Pac.  1097;  Delaware, 
L.  &  W.  R.  Co.  V.  Yurkonis,  220  Fed. 
429,  affirming  213  Fed.  537;  Toledo, 
St.  L.  &  W.  R.  Co.  V.  Slavin  (U.  S.) 
35  Sup.  Ct.  306;  58  L.  Ed.  — ,  re- 
versing 88  Ohio  St.  536;  106  N.  E. 
1077;  Melzner  v.  Northern  Pac.  Ry. 
Co.  46  Mont.  162;  127  Pac.  1002; 
Chicago,  R.  I.  &  P.  Ry.  Co.  v.  HoUi- 
day  (Okla.)  145  Pac.  786;  Cross  v. 
Chicago,  B.  &  Q.  R.  Co.  (Mo.  App.) 
177  S.  W.  1127;  St.  Louis  &  S.  F.  R. 
Co.  V.  Snowdon  (Okla.)  149  Pac. 
1083;  Knapp  v.  Great  Northern  Ry. 
Co.  (Minn.)  153  N.  W.  848;  Peek  v. 
Boston  &  Maine  R.  Co.  223  Fed.  448. 

There  can  be  no  recovery  by  an 
interstate  employee  under  a  Work- 
man's Compensation  Statute.  Smith 
V.  Industrial  Accident  Com.  (Calif. 
App.)  147  Pac.  600;  Staley  v.  lUinois 
Central  R.  Co.  (111.)  109  N.  E.  342, 
reversing  186  111.  App.  593;  Raunsa- 
ville  V.  Central  R.  Co.  (N.  J.)  94  Atl. 
392;  Winfield  v.  N.  Y.  Cent.  &  H. 
R.  R.  Co.  153  N.  Y.  Supp.  499; 
Southern  Pac.  Co.  v.  Piltsbury  (Cal.) 
151  Pac.  277.  See  Jensen  v.  Southern 
P.  Co.  (N.  Y.)  109  N.  E.  600.  But 
there  can  be  for  interstate  employees 
not  covered  by  the  Federal  Act.  Jen- 
sen V.  Southern  P.  Co.,  supra. 

>  Michigan  Central  R.  Co.  v. 
Vreeland,  227  U.  S.  59;  33  Sup.  Ct. 
192;  57  L.  Ed.  192,  reversing  189 
Fed.  495. 

=  Missouri,  K.  &  T.  Ry.  Co.  v. 
Sadler  (Tex.  Civ.  App.)  149  S.  W. 
1188;  Missouri,  etc.,  R.  Co.  v.  Turner 
(Tex.  Civ.  App.)  138  S.  W.  1126; 
Missouri,  etc.,  R.  Co.  v.  Castle,  172 
Fed.  841;  97  C.  C.  A.  124;  Missouri, 
etc.,  R.  Co.  v.  Castle,  224  U.  S.  541; 
32  Sup.  Ct.  606;  56  L.  Ed.  875;  Jones 
V.  Chesapeake,  etc.,  R.  Co.  149  Ky. 
566;  149  S.  W.  951. 


COXSTITUTTOXALITY    OF    STATUTE.  37 

§  21.  Must  interstate  employee  bring  his  action  on  the 
statute? — If  the  act  of  Congress  is  exclusive,  must  an  em- 
ployee engaged  in  interstate  commerce,  when  injured,  bring 
his  action  upon  the  statute?  This  is  a  very  important 
question,  and  it  bas  been  ansv^rered.  Since  the  act  of  Con- 
gress repeals  or  suspends  state  legislation  within  the  scope  of 
its  provisions  such  an  employee  must  bring  his  action  upon 
the  statute,  and  if  he  does  not  he  will  be  defeated.^^*  It  is 
now  settled  by  several  eases  that  the  statute  ''was  intended 
by  Congress  to  cover  the  entire  subject-matter  of  the  lia- 
bility of  carriers  by  railroad  while  engaged  in  interstate 
commerce  to  employees  if  the  employee  injured  or  killed  is 
at  the  time  engaged  in  such  interstate  commerce,  and  that 
it  is  plenary  and  supersedes  all  other  law  relating  to  such 
liability ; ' '  and  the  court  added :  ' '  Consequently  this  action, 
founded  on  a  State  statute,  can  not  now  be  maintained." 
The  action  had  been  brought  on  a  state  statute,  but  the 
railway  company  insisted  that,  as  the  deceased  was  a  loco- 
motive engineer  engaged  at  the  time  of  his  injury  in  moving 
interstate  traffic,  it  should  have  been  brought  upon  the  Fed- 
eral statutes;  and  the  court  upheld  its  contention.^^^  In  an- 
other case  it  was  said:  "It  is  clear  that  the  [Federal]  Act 
of  April  22,  1908,  superseded  and  took  the  place  of  all  state 
statutes  regulating  relations  of  employers  and  employees 
engaged  in  interstate  commerce  by  railroads.  It  covered 
not  only  injuries  sustained  by  employees  engaged  in  that 
commerce  resulting  from  the  negligence  of  the  master  and 
his  servants,  and  from  defects  in  the  designated  instru- 
mentalities in  use  in  that  commerce,  but  also  dealt  with 
contributory  and  comparative  negligence  and  assumed  risk, 

51*  If  the  pleading  does  not  sliow  showed  that  the  plaintiff  was  not 

that  the  plaint? ff  was   engaged   in  engaged     in     interstate     commerce 

interstate  commerce,   bnt  the  evi-  when  injured,  the  verdict  must  be 

dence    develops    the    fact    that    he  for  the  defendant;   and  no  answer 

was,   then  there  would  be   a  fatal  or  plea  to  that  effect  is  necessary, 

variance    that    would    defeat    him  sia  Dewberry  v.  Southern  Ry.  Co. 

unless    the    complaint   or    declara-  175  Fed.  307.     This  view  has  been 

tion  was  amended.     The  defendant  held  in  the  following  cases:     Tay- 

could     file     an     answer     or     plea  lor  v.   Southern  Ey.   Co.   178   Fed. 

setting  up  the  fact  that  he  was  so  380;  Bottoms  v.  St.  Jjouis  &  S.  F. 

engaged    which   would    present    an  R.    Co.    170    Fed.    318;     Zikos    v. 

issue  for  the  jury;   and  if  proven  Oregon  R.  &  N.  Co.,  179  Fed.  893; 

the   verdict   must  be    for    the    de-  Fithian  v.  St.  Louis  &  S.  F,  Ry. 

fendant.     See  §  19.  Co.     188    Fed.    812;    The    Passaic, 

So    if    there    was    a    declaration  190  Fed.  644;  Yost  v.  Union  Pac.  R. 

upon  the  statute,   but  the  evidence  Co.  245  Mo.  219;  149  S.  W.  577. 


38  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

making  in  certain  eases,  at  least,  the  master  an  insurer  of 
the  safety  of  the  servant  while  in  his  employment  in  that 
commerce.  It  covers  and  overlaps  the  whole  state  legisla- 
tion, and  is  therefore  exclusive.  All  state  legislation  on  that 
subject  must  give  away  before  that  act."  ^^'^  Nor  can  a  state 
or  territorial  statute  be  resorted  to  in  order  to  defeat  the 
cause  of  action  given  by  the  Federal  statute.^^''  After 
quoting  section  two  of  the  Federal  Act,  it  was  said  in  one 
•case:  "Here,  then,  is  an  act  of  Congress,  enacted  for  the 
purpose  of  enabling  employes  of  common  carriers  by  rail- 
road to  recover  damages  for  injuries  suffered  by  them  while 
employed  by  the  common  carriers  in  the  territories.  The 
section  of  the  act  quoted  has  specific  application  to  the 
territories,  and,  being  the  supreme  law  of  the  land,  super- 
sedes all  other  laws  embracing  the  same  subject-matter." 
The  court  then  makes  a  short  analysis  of  the  statute,  and 
adds:  "When  the  act  is  analyzed,  it  becomes  apparent  that 
it  was  the  purpose  of  Congress  to  confer  rights  and  benefits 
upon  the  injured  employee  which  were  denied  him  by  the 
■common  law,  and  hence  the  existence  of  a  common  law  right 
of  action  on  the  part  of  an  injured  employee  cannot,  in 
reason,  be  claimed  in  the  presence  of  this  act  of  Congress. 
Indeed,  the  act  is  the  law,  and  the  only  law  ^^^  under  which 
suits  like  the  present  one  may  be  brought.     It  is  the  law 

51b  Fulgham  v.  Midland  R.  Co.  117  S.  W.  436;   Clark  v.  Southern 

167  Fed.  660.     It  was  held  that  in  Pacific  Go.  175  Fed.  122;  Nashville, 

this  case,   the  action  having  been  C.    &    St.    L.    Ry.    Oo.    128    U.    S. 

brought  upon  the  Federal  skitute,  96;   9  Sup.  Ct.  28;   32  L.  Ed.  352. 

resort    could    not    be    had    to    the  In  the  last  case  Justice  Field  says : 

Arkansas    statute    to    enable    the  "It  is  conceded  that  the  power  of 

administrators     of     an     interstate  Congress     to     regulate     interstate 

commerce  employee  to  enforce  the  conunereo  is   plenary;    that,  as  in- 

employee's  right  of  action,  it  hav-  cidcmt  to  it.  Congress  may  legislate 

ing    died    with    him,    because    the  as  to  the  qualification  and  liabili- 

Federal    statute   gave   no    right   of  ties    of    employees    and    otliers    on 

action   to  his   personal   repr(>senta-  railway    trains    engaged    in    that 

tives.     Walsh  v.  New  York,  N.  H.  commerce;    and   that   such   legisla- 

&  n.   R.  Co.   173   F(>d.  494.  tion     will      supersede     any     state 

■"■'ic  Southern    Pacific   Co.   v.   Mc-  action  on  the  subject." 

Ginnis,   174   Fed.   649;    El   Pasio   &  cid  This  was  an   action  brought 

N.    E.    Ry.    CV>.    V.    Gutierrez,    215  to  recover  damages  for  an  injury 

U.   S.   87";    30   Sup.   Ct.  21;    54   L.  sustained   in   a   territory.      Do   Ri- 

Ed.    106,   affirming    102   Tex.   376;  vera  v.  Atcliison,    T.  &\s.   Fe  l^y. 

Co.  Tex.  Civ.  App.  149  S.  W.  223; 
Yost  V.  Union  Pac.  R.  Co.  245  Mo. 
219;  149  S.  W.  577.    See  §  18. 


CONSTITUTIONALITY   OF   STATUTE. 


39 


of  the  ease,  by  which  the  rights  of  the  employee  and  the 
liability  of  the  carriers  are  measured.  The  very  subject- 
matter  of  the  controversy  is  federal.  "°^® 


"e  Cound  V.  Atchison,  T.  &  S.  F. 
Ry.  Co.  173  Fed.  527;  Taylor  v. 
Southern  Ry.  Co.  178  Fed.  380. 

"There  is  a  count  in  the  declara- 
tion omitting  the  statement  that  the 
petitioner  and  defendant  company 
were  engaged  in  interstate  commerce 
at  the  time  of  the  alleged  injury,  the 
Employer's  Liability  Act,  superseding 
all  other  law,  will  be  controlling  on 
the  question  of  the  jurisdiction  of  this 
court  and  the  right  of  removal." 
Bottoms  V.  St.  Louis  &  S.  F.  R.  Co, 
179  Fed.  318. 

A  state  court  has  held  that  the 
action  must  be  brought  under  this 
statute  where  the  employee  is  in- 
jured in  the  forwarding  of  interstate 
traffic.  Bradbury  v.  Chicago,  R.  I.  & 
Pac.  Ry.  Co.  149  Iowa  51;  128  N. 
W.  1. 

The  federal  statute  supersedes  the 
common  law  right  of  action.  Lauer 
V.  Northern  Pac.  Ry.  Co.  (Wash.) 
145  Pac.  606  (Contra,  Grow  v.  Oregon 
Short  Line  R.  Co.  (Utah)  138  Pac. 
398)  and  a  state  statute.  Vickery  v. 
New  London  Northern  Ry.  Co.  87 
Conn.  634;  89  Atl.  277;  South  Coving- 
ton &  C.  St.  Ry.  Co.  V.  Finan,  153 
Ky.  340;  155  S.  W.  742,  and  a  terri- 
torial act.  Rivera  v.  Atchinson,  T.  & 
S.  F.  Ry.  Co.  (Tex.  Civ.  App.)  149 
S.  W.  223,  and  the  constitution  of 
South  Carolina.  Bramlett  v.  South- 
ern Ry.  Co.  98  S.  C.  319;  82  S.  E.  501. 

A  party  can  not  elect  to  proceed 
under  a  state  statute.  Vickery  v. 
New  London  Northern  Ry.  Co.  87 
Conn.  634;  89  Atl.  277. 

A  statute  allowing  a  father  damages 
for  his  mental  pain  and  suffering  and 
loss  of  services  caused  by  the  wrong- 
ful death  of  his  son  is  annulled  by  the 
federal  statute  if  he  be  killed  when 
engaged  in  interstate  commerce. 
Flanders  v.  Georgia,  S.  &  F.  Ry.  Co. 
(Fla.)  67  So.  68. 

If  a  case  be  made  out  under  a 
state  statute  but  not  sufficient  to 
recover  under  the  Federal  Act,  there 
can  be  no  recovery  if  the  injured 
person  was  an  interstate  employee 
when  injured.  South  Covington  & 
C.  St.  Ry.  Co.  v.  Finan,  153  Ky.  310; 
155  S.  W.  742. 


If  a  cause  of  action  be  alleged  at 
common  law,  a  replication  alleging 
an  action  under  the  Federal  Act  is  a 
departure.  Niles  v.  Central  Vt.  Ry. 
Co.  87  Vt.  356;  89  Atl.  629. 

A  state  statute  allowing  interest  on 
the  verdict  is  annulled.  Norton  v. 
Erie  R.  Co.  163  App.  Div.  468;  148 
N.  Y.  Supp.  771. 

If  a  recovery  be  had  under  the  com- 
mon law  or  under  a  state  statute,  the 
question  of  liability  under  the  federal 
statute  can  not  be  raised  for  the 
first  time  on  appeal.  Chicago,  R.  I.  & 
P.  Ry.  Co.  V.  HoUiday  (Okla.)  145 
Pac.  786. 

If  the  complaint  set  forth  a  cause 
of  action  under  the  Federal  Act,  the 
question  of  liability  under  a  state 
statute  only  may  be  raised  on  the 
introduction  of  the  evidence.  Penny 
V.  New  Orleans  Great  Northern  R. 
Co.  135  La.  962;  66  So.  313. 

Where  a  widow  sued  under  a  state 
law  for  the  death  of  her  husband 
when  engaged  in  interstate  com- 
merce it  was  held  that  there  was  no 
waiver  of  the  objection  that  the  right 
of  action  was  under  the  Federal  Act, 
no  waiver  having  been  pleaded,  a 
demurrer  to  the  evidence  having  been 
filed  and  a  motion  in  court  having 
been  made.  By  pleading  contribu- 
tory negligence  and  assumption  of 
which  it  was  also  held  that  the  de- 
fendant did  not  adopt  the  theory  that 
the  case  was  governed  solely  by  the 
state  statute.  In  this  Missouri  case 
it  was  held  that  a  judgment  in  Kansas 
rendered  on  the  state  statute  was 
void.  Vaughan  v.  St.  Louis  &  S.  F. 
R.  Co.  177  Mo.  App.  155;  164  S.  W. 
144. 

A  state  statute  limited  to  intrastate 
employees  is  not  in  conflict  with  the 
federal  statute.  Fernette  v.  Pere 
Marquette  R.  Co.  (Mich.)  144  N.  W. 
834;  Southern  Ry.  Co.  v.  R.  R.  Com- 
mission, 179  Ind.  23;  100  N.  E.  337; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Sadler 
(Tex.  Civ.  App.)  149  S.  W.  1188. 

The  constitution  of  Oklahoma  did 
not  adopt  the  federal  statute  of  July 
1,  1906,  that  was  held  unconstitu- 
tional. Chicago,  R.  I.  &  P.  Ry.  Co. 
V.  McBee  (Okla.)  145  Pac.  331. 


4Q  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

§  22.  Act  of  1906,  validity  in  District  of  Columbia  and 
Territories. — The  act  of  1906  was  held  invalid  also  as  to  a 
cause  of  action  arising  in  the  District  of  Columbia.^^  And 
the  same  holding  was  made  with  respect  to  the  territories.^' 

§  23.  Construction  of  statute. — As  this  statute  was 
enacted  for  the  benefit  of  the  employe,  and  is  an  implied  decla- 
ration on  the  part  of  the  Congress  that  the  old  and  harsh  rules 
of  the  common  law  were  inadequate  for  the  protection  of  his 
life  and  limbs  when  applied  to  the  new  and  changed  condi- 
tions of  industrial  life  under  which  he  is  compelled  to  render 
services  in  order  to  gain  a  livelihood,  and  thereby  not  become  a 
burden  on  the  public  for  support  in  case  of  his  injury,  it  is  to 
be  liberally  construed  so  as  to  carry  out  the  intention  of  the 
legislature.  The  argument  of  hardship  upon  the  railroad  com- 
pany is  not  to  be  considered.  That  argument  is  plausible 
"only  when  the  attention  is  directed  to  the  material  interest 
of  the  employer  to  the  exclusion  of  the  interests  of  the  em- 
ploye and  the  public."  When  an  injury  happens  to  an  em- 
ploye, there  must  be  a  hardship  to  him.  "If  its  burden  is 
transferred,  so  far  as  it  is  capable  of  transfer,  to  the  em- 
ployer, it  is  a  hardship  to  him.  It  is  quite  conceivable  that 
Congress,  contemplating  the  inevitable  hardship  of  such  in- 
juries,^* and  hoping  to  diminish  the  economic  loss  to  the  com- 
munity resulting  from  them,  should  deem  it  wise  to  impose 
their  burdens  upon  those  who  would  measurably  control  their 
causes,  instead  of  upon  those  who  are  in  the  main  helpless 
in  that  regard.'"^"'    In  construing  the  Safety  Appliance  Act, 

The  question  of  liability  only  under  U.  S.  702;  33  Sup.  Ct.  703;  57  L.  Ed. 

the    federal    statute    may   be    raised  1031,  reversing  98  Ark.  240;  135  S.  W. 

for  the  first  time  in  an  action  on  a  874. 

state  statute  or  at  common  law  at  the  ^^  Hyde   v.    Southern   Ry.   Co.   31 

close  of  tlie  evidence.     St.  Louis,  S.  App.  D.  C.  466.    But  see  same  case, 

F.  &  T.  Ry.  Co.  V.  Scale,  229  U.  S.  36  Wash.  L.  Rep.  374. 
156;  .33  Sup.  Ct.  651;  57  L.  Ed.  1129,  "Atchison,  etc.,  Rv.  Co.  v.  Mills, 

reversing  (Tex.  Civ.  App.)  149  S.  W.  49  Tex.   Civ.  App.  349;   108  S.   W. 

1099;  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Rep.  480. 

McWhirter,  229  U.  S.  265;  33  Sup.  "  Injury  bv  unlawful  couplings. 

Ct.  858;  57  L.  Ed.  1179,  reversing  145  "  St.  Louis^!  etc.,  Ry.  Co.  v.  Taylor, 

Ky.  427;  140  S.  W.  672;  St.  Louis,  210  U.  S.  210;  28  Sup.  Ct.  Rep.  616; 

I.  M.  &  S.  Ry.  Co.  V.  Hesterly,  228  52  L.  Ed.  1061. 


CONSTITUTIONALITY    OF    STATUTE.  41 

Chief  Justice  Fuller  said:  "The  primary  object  of  the  act 
was  to  promote  the  public  welfare  by  securing  the  safety  of 
employes  and  travelers,  and  it  was  in  that  aspect  that  it  was 
remedial,  while  for  violations  a  penalty,  one  hundred  dol- 
lars, recoverable  in  a  civil  action,  was  provided  for,  and  in 
that  aspect  it  was  penal.  But  the  design  to  give  relief  was 
more  dominant  than  to  inflict  punishment,  and  the  act  might 
well  be  held  to  fall  within  the  rule  applicable  to  statutes  to 
prevent  fraud  upon  the  revenue,  and  for  the  collector  of 
customs,  that  rule  not  requiring  absolute  strictness  of  con- 
struction." ^^  Of  course,  in  the  Federal  Employers'  Liabil- 
ity Act  no  quasi  oifense  is  involved — only  a  civil  liability; 
but  the  above  quotation,  aside  from  reference  to  the  penal 
offense,  is  quite  applicable.  "The  statute  is  remedial  in  the 
character,  and  it  should  'be  so  construed  as  to  prevent  the 
mischief  and  advance  the  remedy.  "^'^  In  another  case  it 
was  said:  "The  statute  in  question,  while  it  is  remedial  in 
the  sense  that  it  affects  the  remedy  in  accident  cases,  is  not 
of  the  nature  of  those  remedial  statutes  which  Tiave  re- 
ceived a  liberal  and  expansive  application  at  the  hands  of 
the  court,  such  as  statutes  intended  to  remedy  a  mischief, 
to  promote  public  justice,  to  correct  innocent  mistakes,  to 
cure  irregularities  in  judicial  proceedings,  or  to  give  effect 
to  the  acts  and  contracts  of  individuals  according  to  the 
intent  thereof .  "''•^  The  act  under  consideration  should  be  as 
broadly  and  as  liberally  construed  as  possible  ;"^^  and  to 
cover  every  act  of  negligence.®"  But  the  act  only  applies  to 
certain  cases,  leaving  some  cases  without  its  provisions.®^ 

"Johnson   v.    Southern   Pac.    Ry.  P.  Ry.  Co.   (Iowa)   147  N.  W.  337; 

Co.  196  U.S.  1;  25  Sup.  Ct.  Rep.  158;  Hench   v.   Pennsylvania  R.  Co.   246 

49  L.  Ed.  363,  reversing  117  Fed.  Rep.  Pa.  1;  91  Atl.  1056. 

462;  54  C.  C.  A.  508;  United  States  v.  ^9  Atlantic   Coast   Line   R.   Co.   v. 

Illinois  Central  R.  Co.  177  Fed.  801;  Jones    (Ala.)    63    S.    E.    693;    citing 

United  States  v.  Chicago,  R.  I.  &  P.  Behrens   v.    Illinois   Central   R.   Co. 

Ry.  Co.  173  Fed.  684.  192  Fed.  581. 

"  St.  Louis,  M.  &  S.   Ry.  Co.  v.  ^o  DeAtley  v.  Chesapeake  &  O.  R. 

Conley,  187  Fed.  949;  110  C.  C.  A.  97.  Co.  201  Fed.  591. 

"  Winfree  v.  Southern  Pacific  Ry.  «'  Baltimore  &  O.  R.  Co.  v.  Whit- 
Co.  173  Fed.  65;  Fulgham  v.  Midland       acre,  124  Md. ;  92  Atl.  1060. 

Valley  R.  Co.  167  Fed.  660.  "The  act  under  consideration  should 

The  statute  must  be  liberally  con-  be  as  broadly  and  liberally  construed 

strued.    St.  Louis,  I.  M.  &  S.  Ry.  Co.  as   possible."      Atlantic    Coast    Line 

V.  Conley,  187  Fed.  949;  110  C.  C.  A.  R.  Co.  v.  Jones  (Ala.)  63  So.  693. 
97;  Armbruster  v.  Chicago,  R.  I.  & 


42  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

§  24.  State  Courts  must  follow  Federal  Court  Decisions 
— Appeal. — The  decisions  of  the  Federal  Courts  in  the  con- 
struction of  this  Statute  are  controlling  and  will  be  followed 
by  the  state  courts.^-  If  there  be  a  conflict  between  the 
decisions  of  the  Federal  Courts,  but  not  of  the  Supreme 
Court,  the  state  courts  will  adopt  that  construction  given 
the  statute  which  seems  the  most  reasonable  one.*'^  An  ap- 
peal lies  from  the  decision  of  a  state  court  construing  the 
statute  to  the  United  States  Supreme  Court  upon  the  ques- 
tion of  construction,  or  at  least  a  writ  of  error  from  the 
latter  court  to  the  former.^* 

§  25.    In  Pari  Materia  with  Safety  Appliance  Acts. — The 

Safety  Appliance  Acts — the  Act  requiring  all  interstate  cars 
to  be  equipped  with  automatic  couplers — were  enacted  for 
the  protection  of  employees  of  interstate  railroads  operat- 
ing trains ;  and  the  statute  giving  employees  of  such  employ- 
ers a  right  of  action  when  injured  is  in  line  with  such  Acts. 
The  courts,  therefore,  construe  these  several  acts  in  pari 
materia  in  an  action  by  such  an  employee  to  recover  damages 
for  an  injury  he  received  because  of  an  insufficient  coupler.*^^ 

"  Montgomery  v.  Southern  Pac.  N.  W.  58;  Armbruster  v.  Chicago, 
Co.  64  Ore.  597;  131  Pac.  507;  Horton  R.  I.  &  P.  Ry.  Co.  (Iowa)  147  N.  W. 
V.  Oregon  &  Wash.  Nav.  Co.  72  337;  McAdow  v.  Kansas  City  West- 
Wash.  503;  130  Pac.  897;  Ruck  v.  em  Ry.  Co.  (Mo.  App.)  164S.  W.  188; 
Chicago,  M.  &  St.  P.  Ry.  Co.  153  Hawkins  v.  St.  Louis  &  S.  F.  R.  Co. 
Wis.  158;  140  N.  W.  1074;  McAdow  (Mo.  App.)  174  S.  W.  129. 
V.  Kansas  City  W.  Ry.  Co.  (Mo.  App.)  Although  there  is  no  Federal  com- 

1G4  S.  W.  188;  Hardwick  v.  Wabash  mon  law,  yet  State  Courts  must 
R.  Co.  181  Mo.  App.  156;  168  S.  W.  follow  the  Federal  Courts  where 
328;  Lauer  v.  Northern  Pac.  Ry.  Co.  they  declare  what  is  the  common 
(Wash.)  145  Pac.  606;  Rich  v.  St.  law.  Cross  v.  Chicago,  B.  &  Q.  R. 
Louis  &  S.  F.  R.  Co.  166  Mo.  App.  Co.  (Mo.  App.)  177  S.  W.  1127. 
379;    148    S.    W.    1011;    Cousins    v.  «  iluck  v.  Chicago,  M.  &  St.  P.  Ry. 

Illinois   Cent.    R.    Co.    (Minn.)    148       Co.  153  Wis.  158;  140  N.  W.  1074. 

«^  Hardwick    v.    Wabash    R.    Co. 

181  Mo.  App.  156;  168  S.  W.  328. 
"■'  North  Carolina  R.  Co.  v.  Zack- 

cry,  232  U.  S.  248;  34  Sup.  Ct.  305; 

58  L.  Ed.  591,  reversing  156N.C.496; 

72S.E.858. 


CHAPTER  III. 
TO  WHAT  RAILROADS  STATUTE  APPLIES. 

SECTION  SECTION 

26.  Carriers   within   territories.  dividual    cars    sent    to    state 

27.  Carriers    engaged    in    interstate  points. 

commerce.  33.     Interurban    and    street   railway 

28.  Branch  railroad.  common  carriers. 

29.  Logging  railroad.  34.     "While    engaged    in    commerce 

30.  Common  carriers.  between  the  states." 

31.  Cut-off  not  yet  devoted  to  inter-  35.     Illustrations  on  interstate  corn- 

state     traffic  —  working     on  merce  transactions. 

bridge.  36.     Two  companies  operating  over 

32.  Interstate  train   of  empty   cars  same  railroad. 

broken  up  and  afterwards  in-      37.     Lessor  and  lessee. 

§  26.  Carrier  within  Territories. — Congress  has  plenary 
power  in  all  matters  pertaining  to  the  territories,  the  Dis- 
trict of  Columbia,  the  Panama  Canal  Zone,  and  other  pos- 
sessions of  the  United  States.  A  common  carrier  by  railroad 
in  such  divisions  of  the  United  States  is  liable  "to  any  per- 
son suffering  injury  while  he  is  employed  by  such  carrier  in 
any  of  said  jurisdiction."  The  statute,  of  course,  covers  the 
territory  of  Alaska,  the  District  of  Columbia,  Porto  Rico, 
Hawaiian  Islands  and  the  Philippine  Islands.^ 

§  27.  Carriers  engaged  in  interstate  commerce. — The 
common  carrier  must  be  one  "by  railroad."^  No  other  com- 
mon carrier  is  covered  by  the  statute.  It  must  be  a  "common 
carrier  by  railroad  while  engaging  in  commerce  between  any 
of  the  several  states  or  territories,  or  between  any  of  the 
states  and  territories,  or  between  the  District  of  Columbia 
and  of  the  states  or  territories,  or  between  the  District  of 
Columbia  or  any  of  the  states  or  territories  and  any  foreign 
nation  or  nations."  Therefore,  any  railroad  company  carry- 
ing commercial  products  from  one  state  to  another,  or  from 
a  state  to  a  territory  or  vice  versa,  or  from  a  state  to  the 

'  American  R.  Co.  v.  Birch,  224  U.  terminus  of  the  carrier.    The  Passaic, 

S.  547;  32  Sup.  Ct.  603;  56  L.  Ed.  879;  190  Fed.  644;  Erie  R.  Co.  v.  Kennedy, 

American  R.  Co.  v.  Dedricksen,  227  191  Fed.  3.32;  112  C.  C.  A.  76;  Erie 

U.  S.  145;  33  Sup.  Ct.  224;  57  L.  Ed.  R.  Co.  v.  Jacobus,  221  Fed.  335.    It 

456  (Safety  Appliance  Act).  does   not   apply   to   a   business   cor- 

^  Ray  v.  Merrill  &   King  Lumber  poration.     Ft.   Worth  Belt  Ry.  Co. 

Co.  211  Fed.  717.    It  does  not  apply  v.  Pennyman  (Mo.  App.)   158  S.  W. 

to  a  carrier  by  water.     (The  Pawnee,  1181;  nor  to  an  employee  of  an  inter- 

205    Fed.  333),  unless   the    vessel    is  state   railway  company   who   injured 

operated  as  a  part  of  a  railway  system,  his  fellow  servant.     Kelly  v.  Chesa- 

as  a  ferryboat  to  reach  the  station  or  peake  &  O.  Ry.  Co.  201  Fed.  602. 

43 


44  FEDERAL,    EMPLOYERS'    LIABILITY    ACT. 

District  of  Columbia  or  vice  versa,  or  from  a  state  or  terri- 
tory to  a  foreign  nation,  as  to  Old  Mexico  or  to  Canada,  or 
to  British  Columbia,  comes  within  its  provisions.  So  if  a  com- 
mon carrier  by  railroad  carry  commercial  products  from  the 
interior  of  a  state  bordering  on  the  seashore  and  then  load  it 
upon  its  own  ocean  going  vessels  and  carry  it  to  a  foreign 
port,  it  would  be  engaged  in  commerce  between  such  state 
and  a  foreign  nation ;  and  likewise  it  would  be  so  engaged 
even  though  it  did  not  have  its  own  vessels  if  it  undertook 
to  secure  their  transportation  across  the  ocean  to  a  foreign 
port.  But  if  it  only  undertook  to  transport  and  deliver  them 
to  a  consignee  at  the  seaport,  and  such  consignee  was  to  for- 
ward them  to  a  foreign  nation,  it  would  not  be  engaging  in 
commerce  between  a  state  and  a  foreign  nation.  Yet  if  it  ac- 
cepted goods  billed  and  addressed  to  a  foreign  nation  and 
undertook  to  deliver  them  to  a  company  or  vessel  engaged  in 
transporting  articles  to  the  port  of  the  destination  of  such 
goods  it  would  be  engaged  in  commerce  between  a  state  and 
a  foreign  nation.^  Difficult  questions  necessarily  arise  when  a 
question  not  purely  of  interstate  commerce  is  involved.  The 
Safety  Appliance  Act,  however,  affords  a  reasonable  analogy 
and  in  a  measure  solves  some  of  the  questions  that  arise. 
That  statute  provides  that  "any  common  carrier  engaged  in 
interstate  commerce  by  railroad"  shall  equip  its  cars  with 
automatic  couplers.  The  Employers'  Liability  Act  applies 
to  a  "common  carrier  by  railroad  while  engaging  in  com- 
merce between  any  of  the  several  states."  There  is  prac- 
tically no  difference  in  meaning  between  these  two  phrases 
of  these  two  statutes  so  far  as  designating  the  common  carriers 
to  which  they  are  applicable.  Under  the  Safety  Appliance 
Act  it  has  been  held  that  a  railroad  wholly  within  a  state- 
not  even  so  much  as  touching  the  boundary  line  of  the  state — • 
may  be  engaged  in  interstate  traffic  and  be  liable  to  equip 
its  cars  in  accordance  with  its  provisions.^     And  so  it  has 

1  Tlio   distinction    is   a   fine   ono,       under  the  Safety  Applinnce  Art.    Soe 
but  it  \h  justilied  bv  llK'  decisions       Sees   2r)7.  250 

•'  '  -  See  Sees.  244,  250. 


TO   WHAT    RAILROADS   STATUTE    APPLIES.  45 

been  held  that  the  same  railroad  (situated  in  Colorado^ — a 
narrow  gauge  road — was  engaged  in  interstate  traffic  when 
it  received  express  packages  of  an  express  company,  shipped 
by  such  express  company  from  Kansas  City,  Missouri,  de- 
livered to  it  within  the  state  of  Colorado,  and  re-shipped  by 
transferring  from  the  car  of  lan  interstate  commerce  railroad  to 
its  own  narrow  gauge  cars,  the  packages  being  billed  to  a  sta- 
tion  on  its  road.^  On  the  contrary,  in  an  instance  similar  to 
the  first  instance  given,  where  a  narrow  gauge  road,  wholly 
within  the  state  of  Ohio,  operated  in  connection  with  ths 
Baltimore  and  Ohio  Railroad,  where  the  goods  were  of  neceS' 
sity  transferred  from  a  narrow  gauge  car  to  a  wide  gauge 
car,  it  was  held  that  such  narrow  gauge  road  was  not  en- 
gaged in  interstate  commerce.*  The  latter  decision  is,  how- 
ever, sharply  criticised  in  the  former  decision;^  and  to  the 
author  the  reasoning  in  the  Colorado  case  rests  upon  a 
sounder  basis.  So  under  the  Interstate  Commerce  Act  it  has 
been  held  that  a  belt  railroad,  used  to  transfer  freight  cars 
around  a  city,  and  so  prevent  their  transportation  through 
said  city,  having  connections  with  interstate  commerce  rail- 
roads, was  subject  to  such  act."  So  the  movement  of  cars 
in  the  car  yards  of  a  railroad,  such  cars  not  being  properly 
equipped  with  automatic  couplers,  but  which  had  been 
brought  by  such  railroad  from  another  state,  was  a  violation 
of  that  act.'^  Likewise  it  has  been  held  that  a  railroad  com- 
pany carrying  from  one  state  to  another  on  its  own  construc- 
tion cars,  its  own  iron  rails,  in  cars  not  properly  equipped 
with  automatic  brakes,  was  liable  to  the  penalty  of  the  act  im- 
posed for  using  insufficiently  equipped  cars  in  interstate  com- 
merce.^ The  phrase  "while  engaging  in  commerce  between 
any  of  the  several  states"  is,  especially  in  the  light  of  these 
decisions,  a  very  broad  and  far-reaching  one.  Of  course, 
while  transporting  freight  having  its  origin  in  a  state  to 
another  point  within  the  same  state,  not  in  connection  with 

3  See  Sees.  244,  259.  •  See  Sec.  247. 

*  See  Sec.  259.  '  See  Sees.  246,  248,  249. 

*  See  Sec.  290.  « See  Sec.  239. 


46 


FEDERAL   EMPLOYERS'    LIABILITY   ACT. 


other  freight  brought  from  another  state,  would  not  be  en- 
gaging in  interstate  commerce  or  commerce  between  the  states; 
and  an  employe  of  the  company  injured  while  engaged  in 
such  commerce  could  not  come  within  the  provisions  of  the 
statute  if  he  was  injured;  but  if  there  was  a  single  car  load 
of  products  in  the  train  en  route  from  another  state  to  a 
point  within  the  state  of  destination,  that  would  convert  the 
entire  train  into  an  interstate  commerce  relation,  and  the 
railroad  company  would  then  be  engaged  in  commerce  be- 
tween the  states.^ 


'  Femette  v.  Pere  Marquette  R. 
Co.  (Mich.)  144  N.  W.  834.  See  il- 
lustrations of  Justice  White  quoted 
in  Section  13. 

This  phase  of  the  subject  did  not 
escape  the  attention  of  the  able  law- 
yers in  the  Senate.  This  debate  took 
place  in  part  in  the  Senate: 

Senator  Bacon:  "Now,  I  want 
to  ask  the  Senator  a  question  by 
way  of  illustration.  Of  course, 
never  mind  how  large  a  train  may 
be  and  liow  full  of  goods  it  may 
be,  all  the  balance  of  it  may  be 
intrastate  freight,  but  if  upon  that 
train  tiiere  is  one  single  box  that 
is  to  cross  the  line,  it  makes  the 
train  engaged  in  interstate  com- 
merce. I  want  to  illustrate  it  to 
the  Senator  [Dolliver  of  Iowa]  by  a 
concrete  case.  We  will  suppose  thnt 
a  train  starts  from  Richmond  [Va.] 
to  Alexandria  [Va.].  These  are  ter- 
minal points  for  the  train.  It  has 
freight  consigned  exclusively  to 
Alexandria  or  to  points  between 
Riciimnnd  and  Alexandria.  That 
males  it  altogether  out  of  the 
jurisdiction  of  this  bill;  but  if  at 
Orange  Court  House  [Va.],  on  the 
way,  a  man  puts  on  it  a  box  of 
eigarn  which  is  consignp<l  to  a 
party  in  I'altiriiorc,  that  would 
ininic(lial<'1y  cliiingc  the  character 
of    (he    (rain,    would    it    not,   and 


make    it    after    that    a    train    en- 
gaged   in    interstate     commerce?" 

Mr.  Dolliver:  "I  will  say  to  the 
Senator,  if  I  understand  correctly 
the  decisions  of  the  Supreme  Court, 
that  they  are  to  the  effect  that 
a  railroad  that  is  entirely  within 
a  state,  but  carrying  commerce 
destined  to  points  outside  the 
state,  is  engaged  in  interstate 
commerce  and  is  subject  to  the  in- 
terstate commerce  act." 

Mr.  Bacon:  "That  is  a  clear 
statement  of  the  law.  Then  I  am 
correct  in  the  suggestion  that  on 
a  train  leaving  Richmond  and 
coming  to  Alexandria,  those  being 
terminal  points,  having  no  freight 
except  for  Alexandria  and  inter- 
mediate points,  if,  when  it  reached 
Orange  Court  House,  a  box  of 
cigars  was  put  on  it,  consigned  to 
Baltimore,  it  would  be  converted 
at  once  from  a  train  not  subject 
to  the  provisions  of  this  act  into 
one  that  is  subject  to  it.  Am  I 
not  correct  in  that.  I  ask  the  Sen- 
ator from  Towa  ?  I  am  correct  in 
the  conclusion  that  at  Orange 
Court  House  it  will  be  converted 
into  a  train,  employees  of  which 
would  liocome  engaged  in  inter- 
Htute  commerce,  and  everything 
(Continued   on   page   53.) 


TO    WHAT    RAILROADS    STATUTE    APPLIES.  47 

§  28.  Branch  Railroad. — The  use  of  a  branch  line  may  be 
such  as  to  bring  the  railroad  within  the  Federal  Statute. 
Thus  in  Washington  in  an  action  to  recover  damages  for  in- 
juries inflicted,  it  was  alleged  that  the  defendant  owned  and 
operated  a  system  of  railways  with  several  branches,  and 
was  engaged  in  interstate  commerce  between  several  states 
from  Minnesota  to  Puget  Sound  and  Oregon,  and  that  one 
of  its  branches  extended  out  of  the  city  of  Tacoma,  south- 
easterly, on  which  the  accident  to  the  employe  happened, 
and  this  was  held  to  show  sufficiently  that  this  branch  line 
on  which  the  accident  happened  was  used  in  carrying  on  in- 
terstate commerce.  While  this  was  a  question  of  pleading, 
yet  no  question  was  raised  that  the  employe  was  not  en- 
titled to  recover  on  the  ground  that  he  was  not  injured  by 
an  interstate  railroad,  or  at  a  place  where  the  railroad 
was  not  an  interstate  railway.^ 

§  29.  Logging  railroad. — Where  the  defendant,  a  rail- 
road, owned  a  large  tract  of  timber  land,  and  was  engaged 
in  "logging"  the  land,  selling  all  logs  upon  the  open  market, 
and  in  connection  with  this  land  it  owned  a  logging  road  of 
standard  narrow  gauge  build,  which  was  connected  by 
switch  or  siding  with  the  Great  Northern  Railway ;  that  it 
operated  over  its  road  engines  and  logging  cars ;  that  it  had 
large  booming  grounds  in  the  waters  of  Puget  Sound,  several 
miles  away ;  that  operated  several  large  logging  camps 
upon  its  lands ;  that  over  its  logging  road  it  ran  five  or  six 
logging  trains  each  day  to  and  from  its  various  camps 
and  placed  in  the  booms  over  a  half  million  logs  a  day; 

^  "It  is  true,  as  the  appellant  argues,  were  used  by  the  appellant  in  its 
that  there  is  no  direct  allegation  in  the  business  of  interstate  commerce, 
complaint  that  the  so-called  Wilkison  Moreover,  the  record  discloses  that 
branch  was,  at  the  time  of  the  injury,  the  trial  proceeded  throughout  on 
used  by  the  appellant  in  interstate  this  theory  .  .  .  and  indeed  the 
commerce;  but  we  tnink  it  is  clearly  court  charged  the  jury,  without 
so  inferable  from  the  facts  alleged.  exception  from  the  appellant,  that 
While  the  language  might  have  been  the  fact  that  the  appellant  was  en- 
better  chosen,  it  is  plain  that  the  gaged  in  interstate  commerce  on 
pleader  meant  to  allege,  and  would  this  branch  of  the  road  was  conceded 
be  commonly  understood  as  alleging  by  both  parties."  Smith  v.  Northern 
that  the  interstate  system,  as  well  Pac.  Ry.  Co.  79  Wash.  448;  140  Pac. 
as   the  several   branches   mentioned,  685. 


48  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

that  it  sold  these  logs  to  mills  upon  Puget  Sound ;  that 
poles  and  piles  which  it  cut  from  its  land  were  sold  to  a 
company,  which  shipped  them  from  Washington  to  Califor- 
nia ;  that  the  logs  were  sold  by  it  from  its  booms  to  a  mill  on 
Puget  Sound  operated  within  Washington,  and  were  manu- 
factured by  this  mill,  with  other  logs  purchased  by  it  from 
other  sources,  and  sold  on  the  market  upon  orders  received 
by  the  mill  from  the  eastern  and  central  western  states  and 
coast  cities  and  from  foreign  countries,  and  from  the  State 
of  Washington ;  that  about  80  percent  of  the  output  of  the 
mill  was  shipped  to  other  states  or  foreign  countries  and 
from  the  State  of  Washington;  that  the  defendant  was  a 
corporation  organized  under  local  laws,  and  among  its 
authorized  power  was  that  of  a  common  carrier  together 
with  numerous  other  powers ;  that  the  defendant  never  at 
any  time  operated  its  road  as  a  common  carrier  and  ten- 
dered it  in  any  way  to  the  public  for  service ;  that  the  ser- 
vices rendered  by  it  had  all  been  private,  and  for  the  purpose 
of  carrying  to  its  booming  ground  the  timber  taken  from  its 
land ;  that  no  other  product  had  been  taken  over  the  road 
except  some  timber  taken  from  the  land  of  another  under 
contract  with  it  to  log  the  land  for  the  owner  and  deliver 
the  logs  in  the  waters  of  Puget  Sound ;  and  certain  poles  and 
piles  taken  from  its  land  were  sold  to  a  pole  company,  at  a 
certain  rate  per  stumpage  and  were  delivered  to  this  boom, 
it  was  held  that  the  railroad  company  was  not  engaged  in  in- 
terstate commerce.  "A  concern  is  not  a  common  carrier 
that  is  engaged  in  transporting  its  own  products,  and  before 
a  concern  incorporated  as  a  common  carrier  could  come  with- 
in the  terms  of  the  Employers'  Liability  Act  of  Congress, 
it  would  have  to  do  something  further  than  merely  file  its 
articles  of  incorporation.  The  timber  holdings  and  the  rail- 
road are  held  by  the  same  concern,  operated  together  as  one 
property;  the  railroad  is  used  as  a  'plant'  facility  to  bring 
the  logs  to  the  booming  grounds  of  the  defendant  on  tide 
water.^     The  defendant  was  simply  placing  the  product  of 

*  Citing;  joint  rates  with  Washington  Western  Ry.  27  Interstate  Commerce 
Commission  Report  G30. 


TO    WHAT    RAILROADS    STATUTE    APPLIES.  49 

its  own  land  in  its  own  booming  grounds  so  as  to  be  in  a 
marketable  condition.  The  act  of  the  defendant  in  placing  its 
logs  in  the  boom  on  sale  grounds  can  best  be  compared  to 
the  former  placing  its  corn  or  wheat  in  a  crib  or  granary, 
and  when  so  placed  to  dispose  of  it  upon  the  market  to  per- 
sons offering  the  best  prices.  So  long  as  the  products  of  the 
forest  of  the  defendant  reuiained  in  the  booming  grounds, 
it  certainly  cannot  be  contended  that  any  relation  of  com- 
mon carrier  or  interstate  commerce  could  enter  into  or  at- 
tach thereto.  If  no  interstate  commerce  character  or  com- 
mon carrier  relation  could  attach  to  the  logs  in  the  boom  by 
being  permitted  to  remain  there  covering  a  long  period  of 
time,  the  fact  that  they  remain  there  for  a  short  interval  can- 
not change  that  relation  or  character."  After  quoting  from 
several  cases  the  opinion  concludes  as  follows:  "In  the  in- 
stant case  the  logs  had  not  entered  upon  their  final  journey 
to  their  ultimate  destination.  They  had  simply  been  ac- 
cumulated in  their  raw  state  and  shipped  to  the  boom 
grounds,  where  they  were  distributed  to  the  various  mills, 
which  purchased  the  logs  and  manufactured  them  into  lum- 
ber. I  do  not  believe  that  the  act  was  intended  to  cover  such 
a  case,  and  the  conclusion  is  inevitable  that  the  facts  in  this 
case  do  not  bring  the  plaintiff  within  the  Liability  Act,  un- 
der which  this  action  is  prosecuted.  Another  conclusion  on 
the  part  of  the  court,  it  seems  to  me,  would  be  revolutionary 
in  endeavoring  to  adopt  a  plan  or  system  which  had  not  been 
contemplated  by  Congress  to  the  business  interests  of  the 
country,  and  no  good  purpose  could  be  subserved,"^ 

§  30.  Common  Carrier. — Not  only  must  the  defendant  be 
a  railway  company,  but  it  must  be  a  "common  carrier." 
"Under  this  act,"  it  was  said  in  one  case,  "a  cause  of  action 

^  Ray  V.  Merrill  &  King  Lumber  Co.  and  relies  on  Bacon  v.  Illinois,  227 

211  Fed.  717,  affirmed  220  Fed.  295.  U.  S.  504;  33  Sup.  Ct.  299;  57  L.  Ed. 

The    court    quotes    here   the   Daniel  615.      To   same   effect   is    Shade   v. 

Ball  Case,   10  Wall.   5G5;  19  L.  Ed.  Northern  Pac.  Ry.  Co.  206  Fed.  353. 

999;  Coe  v.   Errol,    116   U.   S.   525;  An    identical    case    is    Nordgord    v. 

6  Sup.  Ct.  475;  29  L.  Ed.  715;  the  Mavsville  &  N.  R.  Co.  218  Fed.  737, 

Sabine  Trans.  Case,  227  U.  S.  Ill;  affirming  211  Fed.  721. 
33   Sup.    Ct.    229;   57    L.    Ed.    442, 


50 


FEDERAL,   EMPLOYERS'    LIABILITY   ACT. 


is  not  set  out  against  the  Oso  Logging  Company,  for  the 
complaint  neither  alleges  that  the  Oso  Logging  Company  is 
a  common  carrier,  nor  does  it  set  out  facts  sufficient  to 
justify  that  conclusion.  In  other  words,  all  the  facts  recited 
might  be  true,  and  the  defendant  Oso  Logging  Company  not 
be  a  common  carrier,  as,  for  example,  if  'the  logs,  poles,  lum- 
ber and  other  materials'  being  handled  in  the  freight  cars 
belonged  to  the  defendant  logging  company,  and  if  this  de- 
fendant was  transporting  logs  and  lumber  products  owned 
by  it  from  the  State  of  Washington  to  other  states,  it  might 
be  engaged  in  interstate  commerce,  but  it  would  not  thereby 
become  a  common  carrier.  It  is  alleged  in  the  complaint 
that  'plaintiff  was  employed  at  the  time  of  his  injury  by  the 
defendant  to  assist  in  the  repairing  of  the  cars  of  the 
Northern  Pacific  Railway  Company  and  replacing  them  upon 
the  railroad  track  repaired;'  but  this  might  be  true,  and, 
further,  it  [the  logging  company]  might  use  some  of  the 
cars  of  the  railroad  company,  as  alleged,  in  hauling  and 
transporting  lumber,  logs,  and  other  materials,  without  be- 
ing or  becoming  a  common  carrier.  This  alone  would  not 
justify  the  conclusion  that  the  logging  company  was  such  a 
carrier;  to  be  a  common  carrier  it  is  necessary  that  such 
carrier  should  undertake  to  serve  all  who  see  fit  to  employ 
it.  It  is  not  alleged  in  express  terms  that  the  logging  com- 
pany is  a  common  carrier,  nor  any  facts  stated  from 
which  it  might  reasonably  be  so  inferred."* 

§  31.  Cutoff  not  yet  devoted  to  Interstate  Traffic — Work- 
ing on  bridge. — An  employe  working  in  the  construction  of 
a  part  of  a  railway  track  that  has  not  yet  been  devoted  to 
interstate  traffic  is  not  within  the  statute.  In  one  instance 
it  was  sought  to  hold  a  railway  company  liable  to  an  em- 
ploye injured  while  constructing  a  bridge  or  a  cutoff.     No 

*  Shade  v.  Northern  Pac.  Ry.  Co.  Co.  v.  Downey,  40  App.  D.  C.  147. 
2()0  Kwl.  3.')3.    To  same  effect,  Ray  v.  Hauling  empty  cars  from  one  state 

Merrill    <fe    King    Logging    Co.    211       to    another   is   interstate    commerce. 
Fed.  717.  North   Carolina  R.   Co.   v.   Zackary, 

A  carrier  of  passengers  only  is  a  232  U.  S.  248:  34  Sup.  Ct.  305;  58  L. 
commf)n  carrier  within  the  meaning  Ed.  501,  reversing  156  N.  C.  496; 
of  the  Federal  Act.    Wasliington  Ry.       72  S.  E.  858. 

The  term  common  carrier  includes 
the  receiver  of  a  niiiroad.  Section  7 
of  Act.  Sec  Ilcsheit  v.  Lusk  (Mo. 
App.)  177  S.  W.  712. 


TO    WHAT    RAILROADS    STATUTE    APPLIES.  5]^ 

rails  had  been  placed  on  the  cutoff.  It  had  never  been  used, 
and  was  not  being  used  at  the  time  of  the  injury,  in  inter- 
state commerce ;  and  could  not  be  so  used  until  iron  rails 
were  placed  in  position.  "The  mere  fact  that  it  was  the  pur- 
pose and  intention  to  so  use  it  at  some  future  time  did  not 
make  it  an  instrumentality  of  interstate  commerce.  That 
purpose  and  intention  might  be  changed,  and  it  might  never 
be  used  in  interstate  commerce,  or  at  all.  The  argument 
that  the  building  of  the  cutoff  was  the  mere  correction  or 
prevention  of  a  defect  in  insufficiency  of  the  defendant's  in- 
instrumentality  for  conduct  of  interstate  commerce  is  too 
remote  and  inconsequential  to  convince.  The  building  of 
such  a  cutoff  is  new  construction  for  use  in  interstate  com- 
merce, as  much  as  the  building  of  a  new  engine  or  cars  or 
plans  prescribed  by  a  railroad  company  to  run  over  the  cut- 
off or  to  take  the  place  of  an  engine  or  car  worn  out  in  in- 
terstate commerce  would  be.  The  Federal  Employers'  Li- 
ability Act  protects  only  those  employed  in  interstate  com- 
merce. Those  employed  in  the  preparation  or  construction 
of  road  beds,  rails,  ties,  ears,  engines,  and  other  instrumen- 
talities which  are  not  intended  for  use  in  interstate  com- 
merce, but  have  never  been  and  are  not  in  use  therein,  are 
not  employed  in  interstate  commerce,  and  are  not  protected 
by  that  act.  There  was  no  error  in  the  ruling  of  the  trial 
court  that  an  employe  engaged  in  the  construction  of  a 
bridge,  600  feet  distant  from  a  railroad,  on  a  cutoff  more 
than  a  mile  in  length,  which  had  never  been  provided  with 
rails  or  used  as  a  railroad,  was  not  employed  in  interstate 
commerce,  although  his  employer  was  engaged,  and  when 
the  cutoff  should  be  completed  intended  to  use  it  in  inter- 
state commerce. "° 

§  32.    Interstate   train   of   empty   cars   broken   up   and 

^  Bravis  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  210  Fed.  495,  and  distinguish- 

Ry.  Co.  217  Fed.  234;  citing  Peterson  ing  San  Pedro  v.  L.  A.  &  S.  L.  R.  Co. 

V.  Delaware,  L.  &  W.  R.  Co.  229  U.  v.  Davide,  210  Fed.  870;  127  C.  C.  A. 

S.  146;  33  Sup.  Ct.  648;  57  L.  Ed.  4.54.     Repairing  side  tracks,  Clark  v. 

1125;  Wabash  R.  Co.  v.  Hayes,  234  Chicago  G.  W.  R.  Co.  (Iowa),  152  N. 

U.  S.  86;  34  Sup.  Ct.  729;  58  L.  Ed.  W.  635. 
1226;  Jackson  v.  Chicago,  M.  &  St.  P. 


52  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

afterwards  individual  cars  sent  to  state  points. — The  inter- 
state character  of  cars  may  be  lost,  if  they  be  not  loaded 
with  interstate  traffic,  by  the  train  being  broken  up,  al- 
though the  cars,  under  new  orders,  be  sent  to  points  within 
the  state.  Thus  a  train  consisting  of  an  engine,  caboose 
and  empty  coal  cars  was  destined  to  certain  coal  mines  in 
Kentucky.  A  few  of  them  had  been  brought  from  points  in 
Tennessee,  and  the  remainder  from  points  in  Kentucky. 
The  orders  to  the  conductor  were  to  bring  all  the  cars  to  a 
designated  point  in  Kentucky,  which  he  did ;  but  he  had  no 
orders  to  carry  them  any  farther.  After  reaching  that 
point,  nineteen  of  these  cars,  some  of  which  had  come  from 
Tennessee,  were  put  into  a  train  and  under  new  orders  sent 
to  another  point  in  Kentucky;  and  during  this  last  journey 
a  brakeman,  while  acting  as  flagman,  was  killed  through  the 
negligence  of  the  railroad  company;  and  suit  because  of  his 
death  was  brought  under  the  Federal  statute,  but  the  Ken- 
tucky Court  of  Appeals  held  that  an  action  on  that  statute 
for  the  death  would  not  lie,  because  the  train  was  not  an  in- 
terstate train.*^  Empty  cars  were  delivered  in  New  York  to 
the  railroad  to  which  they  belonged,  and  were  then,  being  in 
the  hands  of  the  owner,  according  to  railroad  regulations 
and  practice,  "at  home."  They  were  afterwards  moved, 
without  being  billed  or  destined  for  any  particular  place,  to 
points  in  Pennsylvania,  where  such  cars  were  usually  as- 
sembled for  distribution  and  use,  and,  not  being  needed  at 
such  points,  were  from  time  to  time  moved  to  other  distri- 
buting points  in  that  state.  They  were  still  "drifting"  or 
waiting  to  be  assigned  to  service,  Avhen  an  injury  to  a  brake- 
man  on  a  train  on  which  they  were  being  moved  occurred. 
It  was  held  that  the  interstate  movement  of  such  cars  ceased 
when  they  reached  the  first  distributing  point  in  Pennsyl- 
vania ;  and  tliereafter  their  movement  did  not  constitute  in- 
terstate commerce.'' 

*  Louisville  &  N.  R.  Co.  v.  Strange,  '  Pennsylvania    R.    Co.    v.    Kno.x, 

156  Ky.  439;  161  S.  W.  239.  218  Fed.  748. 


TO    WHAT    RAILROADS   STATUTE    APPLIES. 


53 


§  33.  Interurban  and  street  railway  common  carriers. — 
An  interesting  phase  of  the  question  now  under  discussion 
is  that  pertaining  to  common  carriers  by  the  so-called  inter- 
urban electric  railways  and  by  street  railways.  The  former 
partake  more  of  the  character  of  a  common  carrier  by  steam 
railroad  than  the  latter,  and  in  principle  do  not  differ  from 
them.  It  is  beyond  discussion  that  the  statute  includes  all 
common  carriers  by  electric  interurban  railroads  when  en- 
gaged in  interstate  commerce.  There  are  many  instances,  also, 
where  common  carriers  by  street  railroads  pass  from  one 
state  to  another  and  carry  passengers  across  state  lines. 
Such  is  the  case  between  Kansas  City,  Missouri,  and  Kansas 
City,  Kansas;  so  between  New  Albany  and  Jeffersonville, 
Indiana,  and  Louisville,  Kentucky;  so  between  Cincinnati, 
Ohio,  and  Covington,  Kentucky;  so  between  the  District  of 
Columbia  and  Alexandria,  Virginia;  and  so  between  Niagara 


would  be  subject  to  this  law  at 
this  point,  and  from  there  to  Alex- 
andria." 

Mr.  Dolliver:  "I  have  no  doubt 
that  is  true." 

Mr.  Bacon:  "Very  well.  The 
point  I  want  to  ask  the  Senator 
is  this :  If  on  the  line  of  road  be- 
tween Richmond  and  Orange  Court 
House  an  accident  occurs,  the  rule 
of  liability  would  be  determined 
by  the  law  of  Virginia,  because 
there  would  be  no  interstate  com- 
merce; but  after  the  box  of  cigars 
had  been  put  on  at  Orange  Court 
House  if  an  accident  and  an  injury 
occurred  between  there  and  Alex- 
andria, although  it  was  the  same 
train  and  the  same  crew  and  the 
same  people,  the  rule  of  liability 
would  be  determined  by  this  law. 
If  the  injury  was  incurred  before 
the  train  reached  Orange  Court 
House,  the  case  would  go  into  the 
state  court,  and  be  determined  by 
Virginia  law.  But  after  the  box 
of  cigars  had  been  put  on  the 
train  at  Orange  Court  House,  if 
an  injury  occurred  to  the  crew  of 
the  same  train,  the  case  would  go 
into  the  federal  court  and  be   de- 


termined by  the  act  of  Congress 
as  to  the  rule  of  liability.  Am  I 
correct  in  that?" 

Mr.  Dolliver:  "If  the  court  will 
agree  with  the  judgment  of  the 
Senator." 

Mr.  Bacon:  "I  just  simply 
wished  to  know  the  opinion  of  the 
Senator.  These  are  intricacies  of 
the  law  which  I  thought  it  was 
well  the  Senator  should  inform  us 
a.bout." 

Mr.  Dolliver:  "All  those  ques- 
tions have  been  discussed  in  the 
court  and  the  laws  between  inter- 
state and  state  commerce  fairly 
well  defined." 

Mr.  Bacon.  "That  would  be  the 
efli'ect  in  this  particular  case."  60 
Cong.  Record,  1st  Sess.,  p.  4547. 


54  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

City,  New  York,  and  Canada.  Other  illustrations  might  be 
named.  These  several  common  carriers  by  street  railroads 
are  beyond  question  common  carriers  by  railroad ;  and  when 
transporting  passengers  (or  even  freight  as  they  sometimes 
do)  from  one  state  to  another  are  beyond  question  common 
carriers  engaged  in  interstate  commerce.  The  Federal  Em- 
ployers' Liability  Act  clearly  applies  to  them;  and  the  em- 
ployes of  such  street  railways  while  engaged  in  the  trans- 
porting of  such  passengers  (and  freight),  if  injured,  can  in- 
voke the  provision  of  this  statute  in  securing  redress  for 
their  injuries.^"  It  should  not  be  forgotten  that  street  rail- 
way companies  are  not  within  the  provisions  of  the  Inter- 
state Commerce  Act  as  enacted  in  1887.^°* 

§34.    "While  engaging  in  interstate  commerce  between 

the  states." — More  than  fifty  years  ago  the  Supreme  Court 
decided  a  case  involving  interstate  commerce  which  is  in- 
structive in  this  connection,  and  which  was  relied  upon  in  the 
Colorado  decision.^^  "We  make  the  following  quotation  from 
the  earlier  case  in  this  connection :  "  In  this  case  it  is  admitted 
that  the  steamer  was  engaged  in  shipping  and  transport- 
ing down  Grand  River  goods  destined  and  marked  for  other 
states  than  Michigan,  and  in  receiving  and  transporting  up 
the  river  goods  brought  within  the  state  from  without  its 
limits  but  inasmuch  as  her  agency  in  the  transportation  was 
entirely  within  the  limits  of  the  state,  and  she  did  not  run 
in  connection  with,  or  in  continuation  of,  any  line  of  vessels 
porting  goods  destined  for  other  states,  or  goods  brought 
was  engaged  entirely  in  domestic  commerce.    But  this  con- 

lOThe  question   as  to  street  rail-  Ry.  Co.  (Ky.);  155S.  W.  742.    Soelec- 

ways  has  been  settled  in  accordance  trie  interurban  lines  running   across 

with  the  text,  in  a  case  where,  under  state  lines  are  within  the  Federal  Act. 

the  same  management  cars  ran  from  McAdow  v.  Kansas  City  Western  Ry. 

South  Covington,  Ky.,  over  an  inter-  Co.  (Mo.  App.)  164  S.  W.  188. 
state  bridge  (previously  so  held,  Cov-  It  has  been  held  that  the  Federal 

ington  &  C.  Bridge  Co.  v.  Kentucky,  Safety  Appliance  Act  does  not  apply 

154  U.  S.  204;  14  Sup.  Ct.  1087;  38  to   the   equipment   of   an   interstate 

L.  Ed.  902;  4  Interstate  Commerce  electric    railroad,    so    as    to    require 

Rep.    049)     to    Cinciimati,    only    a  automatic  couplers  on  the  cars  where 

single  fare  being  charged  for  the  trip.  such    cars    are    not    used    in    trains. 

South    Covington  &  C.  St.  Ry.  Co.  Campbell  v.  Spokane  &  I.  E.  R.  Co. 

V.  Covington,   (U.  S.);    :i5  Sup.  Ct.  188  Fed.  510. 

158;   58   L.   Ed.,   revormng   HO   Ky.  •»*  Omaha  St.  Ry.  Co.  v.  Interstate 

592;  143  S.  W.  78,  but  not  on  this  Commerce    Commission,    230    U.    S. 

point.    See  also  Caus  v.  Railway  Co.  324;  33  Sup.  Ct.  890;  57  L.  Ed.  1501; 

174  Mo.  53;  73  S.  W.  080;  01  L.  R.  A.  46  L.  R.  A.  (N.  S.)  385. 
475,  and  South  Covington  &  C.  St.  "See  Sees.  244,  259. 


TO    WHAT   HAILROADS   STATUTE    APPLIES. 


55 


elusion  does  not  follow.  So  far  as  she  was  employed  in  trans- 
portings  goods  destined  for  other  states,  or  goods  brought 
from  without  the  limits  of  INIichigan  and  destined  to  places 
within  that  state,  she  was  engaged  in  commerce  between 
the  states,  and  however  limited  that  commerce  may  have 
been,  she  was,  so  far  as  it  went,  subject  to  the  legislation  of 
Congress.  She  was  employed  as  an  instrument  of  that  com- 
merce, for  whenever  a  commodity  has  begun  to  move  as  an 
article  of  trade  from  one  state  to  another,  commerce  in  that 
commodity  between  the  states  has  commenced.  The  fact  that 
several  different  and  independent  agencies  are  employed  in 
transporting  the  commodity,  some  acting  entirely  in  one 
state,  and  some  acting  through  two  or  more  states,  does  in  no 
respect  affect  the  character  of  the  transaction.  To  the  ex- 
tent in  which  each  agency  acts  in  that  transportation,  it  is 
subject  to  the  regulation  of  Congress.  It  is  said  that  if  the 
position  here  asserted  be  sustained,  there  is  no  such  thing 
as  the  domestic  trade  of  a  state;  that  Congress  may  take  the 
entire  control  of  the  commerce  of  the  country,  and  extend 
its  regulations  to  the  railroads  within  a  state  on  which  grain 
or  fruit  is  transported  to  a  distant  market.  We  answer  that 
the  present  case  relates  to  transportaion  on  the  navigable 
waters  of  the  United  States,  and  we  are  not  called  upon  to 
express  an  opinion  upon  the  power  of  Congress  over  inter- 
state commerce  when  carried  on  by  land  transportation.  And 
we  answer  further,  that  we  are  unable  to  draw  any  clear  and 
distinct  line  between  the  authority  of  Congress  to  regulate 
an  agency  employed  in  commerce  between  the  states,  when 
that  agency  extends  through  two  or  more  states,  and  when 
it  is  confined  in  its  action  entirely  within  the  limits  of  a 
single  state.  If  its  authority  does  not  extend  to  an  agency 
in  such  commerce,  when  that  agency  is  confined  within  the 
limits  of  a  state,  its  entire  authority  over  interstate  com- 
merce may  be  defeated.  Several  agencies  combining,  each 
taking  up  the  commodity  transported  at  the  boundary  line 
at  one  end  of  a  state,  and  leaving  it  at  the  boundary  line 
at  the  other  end.  the  Federal  jurisdiction  would  be  entirely 


56 


FEDERAL   EMPLOYERS     LIABILITY    ACT, 


ousted,  and  the  constitutional  provision  would  become  a  dead 
letter."^'  Where  a  railroad  wholly  within  the  State  of 
Georgia  transported  freight  originating  in  Cincinnati,  Ohio, 
over  line  to  its  destination,  upon  through  bills  of  lading,  a 
through  charge  and  assignment  of  the  entire  charge  among 
the  roads  contributing  to  the  movement  having  been  entered 
into,  the  Georgia  railroad,  was  held  to  be  engaged  in  inter- 
state commerce.^-* 


1=  The  Daniel  Ball,  10  Wall.  567 ; 
19  L.  Ed.  999,  reversing  Brown, 
Admr,  Cas.  193;  Fed.  Cas.  No. 
3,564. 

^^*  Cincinnati,  etc.,  R.  Co.  v. 
Interstate  Commerce  Commission, 
162  U.  S.  184.  For  an  illustration 
where,  the  facts  being  very  simi- 
lar, the  state  road  was  held  not  to 
be  engaged  in  interstate  commerce, 
see  Gulf,  etc.,  R.  Co.  v.  Texas, 
204  U.  S.  403;  24  Sup.  Ct.  Rep. 
360;  51  L.  Ed.  540;  affirming  97 
Tex.  274. 

An  employee  engaged  in  taking 
goods,  shipped  from  another  state, 
from  the  ear,  in  which  they  were 
transported,  across  the  station 
platform  to  the  freight  depot,  is 
engaged  in  interstate  commerce 
transportation.  Rhodes  v.  Iowa, 
170  U.  S.  412.  Coal  brought  from 
beyond  the  state  does  not  cease 
to  be  interstate  transportation 
until  actually  delivered  to  the  con- 
signee. McNeill  V.  Southern  Rv. 
Co.  202  U.  S.  543;  26  Sup.  Ct. 
Rep.  722;  50  L.  Ed.  1142. 

But  a  cab  owned  by  a  railroad 
and  used  to  carry  pasengers  frf)m 
a  ferry  to  its  hotel  is  not  used 
in  interstate  commerce.  Pennsyl- 
vania Ry.  Co.  V.  Knight,  192  U. 
S.  21,  the  court  saying:  "If  a 
cab  which  carries  passengers  from 
the  hotel  to  the  ferry  binding  is 
^■ngaged  in  interstate  transporta- 
tion,  why   is  not   the   porter   who 


carries  the  traveler's  trunk  from 
his  room  to  the  carriage  also  en- 
gaged? If  the  cab  service  is  in- 
terstate transportation,  are  the 
drivers  of  the  cabs  and  the  deal- 
ers who  supply  hay  and  grain 
for  the  horses,  also  engaged  in  in- 
terstate commerce,  and  where  will 
the  limit  be  placed?  We  are  of 
the  opinion  that  the  cab  service 
is  an  independent  local  service, 
preliminary  or  subsequent  to  any 
interstate  transportation."  Per- 
haps the  gathering  of  freight  from 
the  place  of  business  of  shippers 
and  distributing  freight  to  such 
places  of  business  by  vehicles  em- 
ployed by  a  railroad  does  not 
make  the  carriage  between  such 
place  of  business  and  the  freight 
station  of  the  carrier  a  part  of 
an  interstate  journey.  Inters/tate 
Commei'ce  Commission  v.  Detroit, 
etc.,  R.  Co.  167  U.  S.  633;  affirm- 
ing 74  Fed.  Rep.  833;  reversing 
57  Fed.  Rep.  1005. 

Judge  Oooley,  in  an  address 
before  the  First  General  Confer- 
ence of  Railroad  Commissioners, 
at  Washington,  D.  C,  March, 
18S9,  said:  "F5ut  there  is  scarcely 
a  line  of  railroad  in  the  country 
so  sihort  or  so  insignificant  that 
the  metliod  in  which  its  operations 
sliall  be  conducted  is  not  of  some- 
thing more  than  local  importance, 
or  the  character  of  its  regulation 
of    some   concern    to    business   in- 


TO    WHAT    RAILROADS   STATUTE    APPLIES. 


57 


§  35.  Illustrations  on  Interstate  Commerce  Transactions. 
— A  company  eng:aged  in  the  business  of  imparting  instruc- 
tion ''by  means  of  correspondence  through  the  mails  be- 
tween the  company  at  its  office  *  *  *  and  the  applicant  at 
his  residence  in  another  state"  is  engaged  in  interstate  com- 
merce.^-^  So  the  transmission  of  intelligence  from  state  to 
state  by  the  telegraph  is  interstate  eommerce.^^''  To  con- 
stitute interstate  commerce  it  is  not  necessary  that  the  carry- 
ing company  should  own  the  products  or  materials  it  carries ; 
and  the  fact  that  it  does  not  does  not  change  the  rule ;  "° 
and  it  is  immaterial  that  the  shipment  is  interrupted  in 
transit  at  the  state  line.^-<^  A  railroad  is  engaged  in  inter- 
state commerce  the  instant  it  begins  the  carriage  of  an 
article  from  one  state  to  another;  and  the  character  of  the 
commerce  continues  without  cessation  until  it  reaches  its 
destination. ^2®  Participation  by  a  carrier  in  the  transporta- 
tion of  goods  destined  from  a  place  in  one  state  to  another 


terests  beyond  the  state  limits. 
It  may  be  a  link  in  a  long  line 
extending  through  two  or  more 
states.  It  may  be  the  principal 
or  perhaps  the  sole  means  of  trans- 
portation for  the  products  of  a 
mine  or  other  important  industry 
which  supplies  many  states,  but 
whether  of  greater  or  less  impor- 
tance, it  has  relations  to  other 
roads  which  are  not  and  can  not 
be  wholly  limited  within  any  polit- 
ical divison  of  the  countiy,  how- 
ever extensive  it  may  be ;  even  the 
little  Catskill  Mountain  Railroad, 
by  the  issue  of  coupon  tickets  to 
San  Francisco,  may^  in  a  sense, 
become  a  part  of  a  transcontinental 
highway,  and  the  citizen  from  the 
Pacific  Coast  who  applies  for  one 
of  the  tickets  has  an  interest  in 
the  treatment  he  shall  receive  in 
respect  to  it,  which  is  precisely 
the  same  that  it  would  be  if  all 
the  roads  of  the  country  were  one 
in  ownership  and  in  management." 


12a  International  Text  Book  Co. 
V.  Pigg.  217  U.  S.  91 ;  30  Sup.  Ct. 
481:  54  L.  Ed.  678. 

12b  Pensacola  Tel.  lOo.  v.  Western, 
96  U.  S.  1 ;  24  L.  Ed.  708 ;  West- 
ern Union  Tel.  Co.  v.  Pendleton, 
122  U.  S.  347;  7  Sup.  Ct.  1126; 
30  L.  Ed.  1187:  reversing  95  Ind. 
12;  Butler  Bros.  Shoe  Co.  v. 
United  States  Rubber  Co.  156 
Fed.  1. 

12C  United  States  v.  Chicago,  M. 
&  St.  P.  Rv.  Co.  149  Fed.  486. 

i2dGulf  C.  &  S.  F.  R.  Co.  V. 
Fort  Grain  Co.  (Tex.  Civ.  App.)  :  73 
S.  W.  845:  U-ited  States  v.  Colo- 
rado &  X.  W.  R.  Co.  157  Fed. 
321:  United  States  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.  149  Fed.  480. 

iseJfcXeil  v.  Southern  Ry.  Co. 
202  U.  S.  543;  26  Sup.  Ct."  722; 
50  L.  Ed.  1142;  In  re  Greene,  62 
Fed.  104;  Cliicago,  M.  &  St.  P. 
Ry.  Co.  V.  Voelker.  129  Fed.  522; 
United  States  v.  Central  of  Georgia 
Ry.  Co.  157  Fed.  893;  Belt  Ry.  Co. 


58 


FEDERAL   EMPLOYERS     LIABILITY   ACT. 


place  in  another  state,  brings  such  carrier  within  the  regu- 
lations of  the  Federal  Government,  whether  the  participa- 
tion consists  in  a  division  tinder  a  joint  rate  of  transporta- 
tion, or  such  carrier  merely  constitutes  a  link  in  the  through 
route  for  such  transportation.^-^  So  the  carriage  of  goods 
from  one  point  in  a  state  to  another  point  in  the  same  state, 
bnt  through  a  portion  of  another  state  in  the  route,  is  inter- 
state commerce.^^^  To  make  the  carriage  of  traffic  an  en- 
gagement in  interstate  commerce  it  is  not  necessary  that  the 
ear  bearing  it  shall  cross  a  state  line,  if  such  traffic  is 
destined  to  a  point  beyond  the  line  of  such  state ;  nor  when 
the  line  of  the  railroad  carrying  it  extends  beyond  such 
border  line.^^^     To  switch  interstate  cars  is  to  engage  in 


V.  United  States,  168  Fed.  542; 
United  States  v.  Boyer,  S5  Fed. 
425. 

i2f  United  States  v.  Standard 
Oil  Oo.,  155  Fed.  305;  Parsons  v. 
Ohieago  &  K  W.  Ry.  Co.  167 
U.  S.  447;  17  Sup.  Ct.  887;  42 
L.  Ed.  231;  Cincinnati,  N.  O.  & 
T.  P.  Ry.  Co.  V.  Interstate  Com- 
merce Commission,  162  U.  S.  184; 
16  Sup.  Ct.  700;  40  L.  Ed.  935; 
Chicago  &  N.  W.  Ry.  Co.  v.  Os- 
born,  52  Fed.  912;  Norfolk  and  W. 
R.  V.  Pennsylvania.  136  U.  S.  114; 
10  Sup.  Ct.  958;  34  L.  Ed.  394; 
reversimr  114  Pa.  256;  6  Atl.  45; 
Belt  Line  Ry.  Co.  v.  United  States, 
168  Fed.  542. 

»2g  Louisville  &  N.  R.  Co.  v.  Allen, 
152  Kv.  145;  153  S.  W.  198;  152  Ky. 
837;  154  S.  W.  371;  Cincinnati,  N.  O. 
&  T.  P.  Ry.  Co.  V.  Goode,  155  Ky. 
153;  159  S.  W.  695,  modifying  153  S. 
W.  247  and  154  S.  W.  911;  Peery  v. 
Illinois  Central  R.  Co.  123  Minn. 
264;  143  N.  W.  724;  Hanlcy  v.  Kan- 
sas City  So.  Ry.  Co.  187  U.  S.  G17; 
23  Sup.  Ct.  214;  47  L.  Ed.  333; 
affirming  106  Fed.  353;  New  Orleans 
Cotton  Excliange  v.  Cincinnati,  N. 
O.  &  T.  l\  R.  Co.  2  Interstate  Corn. 
Rep.  2S9;  Sternberger  v.  Cape  Fear  & 
S.  V.  R.  Co.  29  S.  C.  510;  7  S.  E.  836; 
Mires  v.  St.  Louis  A;  S.  F.  Ry.  Co. 
134  Mo.  App.  379;  114  S.  W.  1052;  St. 
Louis  &  S.  F.  n.  Co.  v.  State,  113  S. 
W.  203;  Davis  v.  Southern  Ry.  Co.  147 


N.  O.  68;  60  S.  E.  722;  Shelby 
Ice  &  Fuel  Oo,  v.  Southern  Rv. 
Co.,  147  N.  C.  61;  60  S.  E.  721; 
United  States  v.  Erie  R.  Oo.  166 
Fed.  352;  Kansas  City  So.  Ry.  Co. 
v.  Railroad  Commission,  106  Fed. 
350;  State  v.  Chicago,  St.  P.,  M.  <& 
O.  R.  Co.  40  IVIiinn.  267 ;  41  N.  W. 
1047.  But  see,  Seawell  v.  Kansas 
City  F.  &  S.  &  M.  R.  Co.  119  Mo. 
222;  24  iS.  W.  1002;  Campbell  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.  S6 
Iowa,  563;  53  N.  W.  323;  United 
States  V.  Lehigh  Valley  R.  Co.  115 
Fed.  373;   Lehigh  Valley  R.  Co.  v. 

Commonwealth  (Pa.), , — ; 

IS  Atl.  125;  Commonwealth  v. 
Lehigli  Valley  R,  Oo.  (Pa.)  17 
Atl.  179;  Tranham  v.  Charleston 
&  W.  C.  Rv.  Co.  (S.  C.)  75  S.  E. 
331. 

i-'h  Ex  parte  Koehler,  30  Fed. 
867;  United  States  v.  Colorado  & 
N.  W.  R.  Co.  157  Fed.  321; 
United  States  v.  Pacific  Coast  Ry. 
Co.  173  Fed.  443;  Covington  & 
C.  Bridge  Co.  v.  Kentuckv,  154 
U.  S.  204;  14  Sup.  Ct.  1087;  38 
L.  Ed.  952;  reversing  15  Ky.  L. 
Rep.  320:  22  S.  W.  S51;  Texas  & 
N.  O.  R.  Co.  v.  Sabine  Transporta- 
tion Co.  121  S.  W.  256.  Between 
points  in  a  city.  Vandalia  R.  Co.  v. 
Holland  (Ind.)  108  N.  E.  .580;  .\ugusta 
S.  R.  Co.  V.  Wrightsville  &  T.  R. 


TO    WHAT    RAILROADS    STATUTE    APPLIES.  59 

interstate  commerce. ^^  But  if  goods  be  shipped  into  a  state 
and  then  delivered  to  the  consignee ;  and  he  then  ships  them 
to  a  point  within  such  state,  this  is  not  a  shipment  in  inter- 
state commerce.^*  The  hauling  of  empty  cars  alone  from 
one  state  to  another  is  interstate  commerce. ^^  Coal  moved 
from  one  state  to  another  for  a  railroad's  own  use  is  the  sub- 
ject of  interstate  commerce;^®  but  coal  hauled  from  one 
point  in  a  state  to  another  point  in  the  same  state  and  there 
unloaded  (or  the  train  broken  up),  and  then  afterwards 
used  as  fuel  on  engines  running  into  other  states,  is  not  in- 
terstate traffic  while  being  transported  in  the  train. ^'^ 

§  36.  Two  companies  operating  over  same  railroad. — The 
Canadian  Northern  Railway  Company  operated  a  railroad 
in  Canada,  southerly  to  the  international  line  of  that  country 
and  the  United  States,  connecting  there  with  the  Northern 
Pacific  Railway  Company,  the  tvN^o  companies  having  a  traffic 
arrangement  whereby  each  delivered  its  ears  to  the  other 
with  its  own  crews.  An  engineer  of  the  Canadian  railway 
company,  under  its  orders  and  pursuant  to  this  traffic  ar- 
rangement, was  taking  a  train  from  its  tracks  in  Canada  to 
these  of  the  Northern  Pacific  in  North  Dakota,  his  duties  re- 
quiring him  to  leave  it  on  the  latter 's  passing  track,  with 
which  its  roundhouse  track  connected,  and  was  injured  by 
his  engine  being  derailed  at  the  junction  of  these  two  tracks 
because  of  an  open  switch  left  open  by  the  Northern  Pacific 
Company's  servants.  He  sued  both  companies  under  the 
Federal  Act  and  successfully  recovered  judgment  against 
them,  which  was  affirmed  on  appeal,  notwithstanding  the 

Co.  74  Fed.  522;  United  States  v.  R.  Co.  v.  United  States,  165  Fed.  423; 

Delaware,  L.  &  W.  R.  Co.  152  Fed.  United    States    v.    Northern    Pacific 

269;     Interstate     Commerce     Com-  Terminal    Co.    144    Fed.    861;    Belt 

mission  v.  Bellaire,  Q.  &  C.  Ry.  Co.  Ry.  Co.  v.  United  States,  168  Fed. 

77    Fed.    942;    Interstate   Commerce  542;  Wabash  R.  Co.  v.  United  States, 

Commission  v.  Seaboard  A.  L.   Ry.  168  Fed.   1;  Rosney  v.  Erie  R.  Co. 

Co.  82  Fed.  563;  Missouri,  R.  &  T.  135  Fed.  311;  Barlow  v.  Lehigh  Val- 

Ry.  Co.  V.  New  Era  MilHng  Co.  80  ley  R.  Co.   (N.  Y.)   107  N.  E.  814; 

Kan.  141;  101  Pac.  1011;  Rhodes  v.  Otos    v.    Great    Northern    Ry.    Co.. 

Iowa,  170  U.  S.  412;  18  Sup.  Ct.  664;  (Minn.)  150  N.  W.  922. 
42  L.  Ed.  — .  "Coe  v.  Erroll,  116  U.  S.  517;  6 

"Johnson  v.  Southern  Pacific  R.  Sup.  Ct.  475;  29  L.  Ed.  715,  affirming 

Co.   196  U.  S.   1;  25  Sup.   Ct.   158;  62  N.  H.  303;  Interstate  Commerce 

49  L.  Ed.  363,  reversing  117  Fed.  462;  Commission  v.  Detroit,  G.  H.  &  M. 

54  C.  C.  A.  508;  Crawford  v.  New  R.  Co.  167  U.  S.  633;  17  Sup.  Ct.  986; 

York,  C.  &  H.  R.  R.  Co.  10  Amer.  42  L.  Ed.  306,  affirming  74  Fed.  803; 

Neg.    Rep.    166;    United    States    v.  21  C.  C.  A.  103. 
Pittsburg,  C,  C.  &  St.  I;.  Ry.  Co.  is  North  Carolina  R.  Co.  v.  Zack- 

143  Fed.  360;  Mobile,  J.  &  K.  C.  R.  ary,  232  U.  S.  248;  34  Sup.  Ct.  305; 

Co.  V.  Bromberg,  37  So.  395;  Union  58  L.  Ed.  591,  reversing  156  N.  C. 

Stock   Yards  Co.   v.   United   States,  496;    72    S.    E.    858;    Thompson    v. 

169  Fed.  404;  Chicago,  M.  &  St.  P.  Wabash  Ry.  Co.  (Mo.)  171  S.  W.  364. 

1^  Barker  v.  Kansas  City,  M.  &  O. 

Ry.  Co.  88  Kas.  767;    129  Pac.  1151. 
^'  Barker  v.  Kansas  City,  M.  &  O. 

Ry.  Co.  (Kas.)  146  Pac.  358. 


60  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

Canadian  road  insisted  that  the  Act  did  not  apply  to  it,  it 
not  being  liable  for  the  negligent  act  of  the  Northern  Pacific 
in  leaving  the  switch  open.  The  court  said  that  the  "pass- 
ing" track  was  the  Canadian  railroad's  track  "the  same  as 
if  it  were  operating  that  part  of  the  road  under  a  lease.  "'^ 
In  another  case  a  servant  was  injured  while  retimbering 
a  railroad  tunnel.  In  the  complaint  it  was  alleged  that  the 
C  company  was  operating  the  line  of  railroad;  that  the 
defendant  K  company  was  a  subsidiary  company  of  the  rail- 
road company,  and  that  the  latter  in  operating  its  road  did 
so  partly  through  the  K  company  as  its  agent.  The  evidence 
sustained  these  allegations,  and  both  companies  were  held 
to  be  common  carriers  within  the  meaning  of  the  Federal 
Act,  and  were  liable  to  the  injured  servant.^^ 

§  37.  Lessor  and  lessee. — The  lessor  of  an  interstate  rail- 
way which  its  lessee  uses  in  connection  with  its  interstate 
business  is  engaged  in  interstate  commerce.  This  was  said 
of  a  domestic  railway  corporation  laying  its  road  and  per- 
mitting a  physical  connection  at  both  ends  with  other  tracks 
laid  by  its  lessee,  and  both  were  held  jointly  responsible 
under  the  Federal  Act,  there  being  a  joint  act  of  negli- 
gence.^" 

But  of  course,  a  sevant  of  the  lessee  can  not  sue  the  lessor, 
for  he  is  not  its  servant.^^  The  lessor  of  an  intrastate  rail- 
way to  an  interstate  railway  carrier  is,  through  its  lessee,  a 
"common  carrier  by  railroad  engaging  in  commerce  between 
the  states"  within  the  meaning  of  the  Federal  Act,  where 
under  the  local  law  the  lessor  is  responsible  for  all  acts  of 
negligence  of  its  lessee  occurring  in  the  conduct  of  the 
business  upon  the  lessor's  road.^- 

'*  Campbell  v.  Canadian  Northern  and  also  another  jointly.     With  his 

Ry.  Co.  124  Minn.  245;  144  N.  W.  own   company   he   had   entered   into 

772,  following  Flood  v.  Chicago,  etc.,  a   contract    waiving    all    claims    for 

R.  Co.   109  Minn.   228;   123  N.  W.  damages  by  reason  of  having  joined 

815;  134  Am.  St.  771;  18  Ann.  Cas.  a   relief   department   maintained   by 

274.  tlie   company,  and   this   release  was 

"  Copper  River  &  N.  W.  Ry.  Co.  held  not  only  invalid  as  to  his  own 

V.  Ileney,  211  Fed.  459.  company,   but  also  as  to  the  other 

2°  Lloyd  V.  Soiith(!rn  Ry.  Co.  166  company,  the  latter  being  held  liable, 

N.  C.  24;  81  S.  E.  1(K)3.  but  not  under  the  Federal  Act. 

"  Wagner  v    Chicago  &  A.  R.  Co.  "  ^orth  Carolina  R.  Co.  v.  Zack- 

265  111.  245;  106  N.  K.  809.  ary,  232  U.  S.  248;  34  Sup.  Ct.  305; 

In   this  case  the  servant  sued  his  58  L.  Ed.   591,  reversing  156  N.  C. 

own  company  under  the  Federal  Act,  496;  72  S.  E.  858. 


CHAPTER  IV. 
TO  WHAT  EMPLOYEES  STATUTE  APPLIES. 


SECTION 

38.  Only  liable  to  its  own  employees. 

39.  What  employee  may  bring  his 

action  upon  the  statute. 

40.  Test    of    employee's    right    to 

recover. 

41.  Effect  on  the  course  and  current 

of  interstate  commerce — In- 
strumentaHties  of  interstate 
commerce. 

42.  Work  must  be  so   closely  con- 

nected with  interstate  com- 
merce as  to  be  a  part  of  it. 

43.  Intent   to   engage   in   interstate 

commerce  in  the  future. 

44.  Incidental    absence   from   scene 

of  work. 

45.  Repairing    instrumentalities    of 

interstate  commerce. 

46.  Original    construction   of   inter- 

state commerce  instrumen- 
talities. 

47.  Impeding  the  progress  of  inter- 

state commerce. 

48.  Track  repairer. 

49.  Statute  includes  ever>'body  Con- 

gress could  include— Same  per- 
son in  different  capacities — 
Track  repairer — Telegraph  op- 
erator. 

50.  Car  repairer  in  switching  yard. 

51.  Laying     additional     track     on 

bridge — Injury  by  interstate 
train. 

52.  Loading     railroad     iron     rails; 

burden. 

53.  "While"  railroad  was  "engaging 

in"  interstate  commerce. 

54.  When   employee   enters   on   his 

work  or  is  entitled  to  the  pro- 
tection of  the  statute. 

55.  When    an    employee   enters   on 

interstate  work. 


SECTION 

56.  Injured  servant  employed  in 
both  interstate  and  intra- 
state commerce. 

Employees  covered  by  statute. 

Other  employments  incidentally 
coimected  with  interstate 
transportation. 

Working  on  bridge — Repairing 
telegraph  lines  —  Installing 
block  system. 

Employees  repairing  interstate 
instrumentalities  are  covered 
by  statute. 

Going  to  and  returning  from 
work. 

Pullman  car  employees — E.xpress 
agent  —  Railroad  surgeon's 
malpractice. 

Cases  holding  employee  not 
engaged  in  interstate  com- 
merce when  injured. 

Switching  crew  moving  inter- 
state commerce — Intention  to 
immediately  move  interstate 
commerce. 


57. 

58. 


59. 


60 


61. 
62. 


63. 


64. 


65. 
66. 
67. 


68. 
69. 


70. 


Relation  between  the  employ- 
ment and  the  accident. 

Who  must  inflict  injury  to  ren- 
der  railway    company   liable. 

Interstate  employee  injured  by 
negligence  of  interstate  em- 
ploj^ee. 

The  Nebraska  statute. 

V:.lidity  of  statute  allowing  a 
recovery  for  an  injury  oc- 
casioned by  an  interstate  em- 
ployee. 

Interstate  engineer  of  interstate 
railroad  hauling  intrastate 
train — Going  to  work. 


§  38.  Only  liable  to  its  own  employees. — It  is  clear  that  a 
common  carrier  by  railroad  is  not  liable  under  the  statute 
to  any  one  except  its  own  employees.^ 


(a) Robinson  v.  Baltimore  &  Ohio 
R.  Co.  (U.  S.)  35  Sup.  Ct.  491;  58 
L.  Ed.  — ;  Wagner  v.  Chicago  &  A.  R. 


Co.  265  111.  245;  106  N.  E.  809;  Ft. 
Worth  Belt  Ry.  Co.  v.  Ferryman  (Te.x. 
Civ.  App.)  158  S.  W.  1181. 
61 


02  FEDERAL,   EMPLOYERS'    LIABILITY   ACT. 

§  39.  What  employee  may  bring  his  action  upon  the 
statute. — It  is  an  interesting  question,  concerning  what  em- 
ployee may  bring  his  action  upon  the  statute,  or  claim  a  right 
to  recover  damages  thereupon  for  his  injuries.  It  is  tau- 
tology to  say  that  he  must  have  been  an  employee  of  the 
defendant  at  the  time  of  the  injury  and  be  injured  in  the 
line  of  his  duty.  That  is  elementary  and  need  not  be  dis- 
cussed. In  fact,  it  is  here  assumed.  The  statute  in  part 
answers  the  question  when  it  provides  that  "every  common 
carrier  by  railroad  while  engaging  in  commerce  between 
any  of  the  several  states,"  "shall  be  liable  in  damages  to 
any  person  suffering  injury  while  he  is  employed  by  such 
carrier  in  such  commerce."  This  last  quoted  clause  desig- 
nates the  employe  who  can  recover  for  his  injuries;  for  he 
must  be  injured  "while  he  is  employed  by  such  carrier  in" 
commerce  between  the  states  or  between  the  states  and  ter- 
ritories. Of  course,  if  he  is  injured  in  a  territory  or  the 
District  of  Columbia,  or  in  the  Panama  Canal  Zone,  "or 
other  possessions  of  the  United  States,"  while  in  the  employ 
of  a  common  carrier  by  railroad,  it  is  immaterial  whether 
he  was  engaged  "in  such  commerce"  or  not;  because  the  pro- 
visions of  the  statute  with  reference  to  the  territories  and 
such  district,  zone  and  "other  possessions,"  are  broader  than 
those  relating  strictly  to  interstate  commerce  carriers,  and 
necessarily  so;  for  in  the  latter  instance  a  constitutional 
question  is  involved  that  is  not  involved  in  the  former  in- 
stance. The  word  "while"  is  significant;  for  by  its  terms 
the  employe  must  be  engaged  in  interstate  commerce  in  order 
to  enable  him  to  recover  under  the  statute.  If  he  be  an  em- 
ploye of  the  railroad  company  and  at  the  time  of  his  injury 
be  not  engaged  in  interstate  commerce,  he  cannot  recover 
under  the  provisions  of  the  statute.  Of  course,  all  trainmen 
while  actually  at  work  in  train  work  would  be  engaged  in 
interstate  commerc;  and  perhai)s  telegraph  operators  en- 
gaged in  telegraphing  train  orders.^ 

'  Carr  v.  New  York  Cent.  &  H.  Ry.  be  used  in  their  ordinary  sense  and  be 
Co.  136  N.  Y.  Supp.  501.  The  words  interpreted  according  to  their  usage  in 
"employec"and  "employment"  should       the  law  of  master  and  servant.     Louis- 


TO  "WHAT  EMPLOYEES  STATUTE  APPLIES. 


63 


ville  &  N.  R.  Co.  v.  Walker  (Ky.)  172 
S.  W.  517.  In  the  debate  upon  this 
proposition  there  was  some  difference 
of  opinion  as  to  the  scope  of  the 
statute  and  the  employees  of  an  inter- 
state commerce  railroad  who  came 
within  its  provisions.  Senator  Bever- 
idge,  of  Indiana,  thought  an  employee 
of  a  railroad  company  100  miles  away 
from  its  line  of  road  felling  trees  for 
its  use  would  come  within  its  pro- 
visions; but  Senator  Dolliver,  of  Iowa, 
called  his  attention  to  the  clause  of 
the  proposed  statute,  and  asked:  "But 
are  they  employed  in  such  commerce, 
in  interstate  commerce?"  and  added 
that  he  considered  the  statute  clear 
as  it  stands  now.  60  Cong.  Record, 
1st  Sess.,  p.  4542. 

In  discussing  the  Act  of  1900, 
which  contained  a  similar  provi- 
sion. Justice  White  said:  "Thus, 
the  liability  of  a  common  carrier 
is  declared  to  be  in  favor  of  'any 
of  its  employees.'  As  the  w'ord 
'any'  is  unqualified,  it  follows  that 
liability  to  the  servant  is  co-ex- 
tensive with  the  business  done  by 
the  employers  whom  the  statute 
embraces;  that  is,  it  is  in  favor 
of  any  of  the  employees  of  all 
carriers  who  engage  in  interstate 
commerce.  This  also  is  the  rule 
as  to  the  one  who  otherwise  would 
be  a  fellow  servant  by  whose  neg- 
ligence the  injury  or  death  may 
have  been  occasioned,  since  it  is 
provided  that  the  right  to  recover 
on  the  part  of  any  servant  will 
exist,  although  the  injury  for 
which  the  carrier  is  to  be  held 
resulted  from  the  negligence  of 
any  of  its  officers,  agents  or   eir>- 


ployees."  Employers'  Liability 
Cases,  supra. 

The  following  extract  is  made 
from  tlie  report  of  counsel  for 
railroad  companies  held  July  13, 
14  and  15,  1908,  at  Atlantic  City, 
upon  the  question  under  discus- 
sion: 

"A  most  important  and  difficult 
question  is  presented  when  we 
come  to  inquire  when  an  employee 
is  'employed  in  such  commerce.' 
There  are  engaged  by  railroad 
companies  various  classes  of  em- 
ployees. There  are  those  engaged 
in  the  operation  of  trains.  There 
are  those  engaged  in  switching 
service  in  yards.  There  are  those 
engaged  in  round  houses,  who  re- 
ceive engines  coming  olf  the  road 
and  make  light  repairs  upon  them 
and  send  them  out.  There  are 
those  engaged  in  maintenance  of 
the  depots,  tracks  and  bridges. 
There  are  the  freight  handlers, 
loading  and  unloading  freight. 
There  are  clerks  in  freight  offices 
and  in  the  general  offices  of  the 
railroad.  Does  this  Act  apply  to 
all  of  these  employees? 

"On  a  railroad  engaging  in  in- 
terstate commerce  it  would  be 
difficult  to  say  that  any  one  of 
these  employees  is  not  at  some 
time  performing  some  service 
having  a  direct  relation  to  inter- 
state commerce.  The  Supreme 
Court  of  the  United  States  has 
laid  down  the  proposition  in  more 
than  one  case  that  a  thing  may 
be  within  the  letter  of  the  statute 
and  not  within  its  meaning,  and 
within    its    meaning    though    not 


64 


FEDERAL   EMPLOYERS'    LIABILITY    ACT. 


As  the  employe   must   be   engaged   in  the   interstate   com- 
merce of  his  employer,  from  the  very  nature  of  the  ques- 


within  its  letter;  that  the  inten- 
tion of  the  law  maker  is  the  law, 
that  a  thing  which  is  within  the 
intention  of  the  makers  of  a  stat- 
ute is  as  much  within  the  statute 
as  if  it  were  Avitliin  the  letter, 
and  a  thing  which  is  within  the 
letter  of  a  statute  is  not  within 
the  statute  unless  it  be  within  the 
intention  of  the  makers.  T  hese 
cases  are  gathered  in  Hawaii  v. 
Manchiki,  190  U.  S.  197;  23  Sup. 
Ct.  Rep.  787;  47  L.  Ed.  1016.  We 
are,  then,  to  ascertain  what  is  the 
purpose  of  this  Act. 

"We  suppose  it  can  be  fairly 
said  that  its  purpose  is  to  render 
the  transportation  of  persons  and 
property  safe  and  to  protect  em- 
ployees engaged  in  such  transpor- 
tation; in  other  words,  that  this 
Act  is  similar  in  its  purposes  to 
the  Acts  requiring  safety  appli- 
ances and  fixing  the  hours  of 
service  of  telegraph  operators  and 
persons  emjjloyed  in  transporta- 
tion. Probably  this  can  be  broad- 
ened so  as  to  include  within  the 
intention  of  the  Act  all  persons 
whose  hours  of  service  and  whose 
protection  Congress  could  legiti- 
mately consider  as  necessary  to  se- 
curing the  safety  of  passengers  and 
freight  moving  in  interstate  com- 
merce. And  we  tliink  that  in  this 
view  a  sensible  construction  of  the 
Act  would  eliminate  those  persons 
whose  service  so  remotely  relates 
to  such  safety  as  not  to  Ix?  fairly 
within  the  regulating  power  of 
Congress. 

"In  another  j>art  of  this  report 
tlie  question  is  discussed  as  to 
wliat  are  the  classes  of  employees 
wlio  can  be  fairly  selected  as  hav- 
ing   an     cinployinciit    iinolving    a 


hazard  not  considered  in  ordinary 
employment.  It  is  there  pointed 
out  that  various  statutes  have 
been  passed  from  time  to  time 
abolishing  or  limiting  the  rule  of 
fellow  servant,  some  of  these  stat- 
utes in  terms  applying  only  to 
those  engaged  in  the  operation  of 
a  railroad,  and  others  being  con- 
strued as  limited  in  this  respect, 
although  the  statutes  are  not  in 
terms  so  limited.  Some  illustra- 
tions may  be  drawn  from  these 
cases. 

"Thus  the  Supreme  Court  of 
Iowa  held  that  the  statute  of  that 
state  applied  only  to  those  dan- 
gers which  were  peculiar  to  rail- 
road o]jeration. 

"In  Luce  v.  R.  Co.  67  Iowa,  75, 
24  N.  W.  600,  the  plaintiff  was 
employed  in  a  coal  house  of  a 
railroad  company  and  while  hoist- 
ing coaf  for  the  purpose  of  coal- 
ing an  engine  was  struck  by  a 
crane  by  which  the  coal  was 
hoisted,  due  to  the  negligence  of 
a  fellow  servant.  It  was  held 
that  the  statute  did  not  apply. 

"In  Foley  v.  R.  R.  Co.  64  Iowa, 
644,  21  N.  W.  124,  a  recovery  was 
denied  to  a  car  repairer  for  in- 
juries he  received  while  repairing 
a  car  on  a  side  track,  by  reason 
of  the  alleged  negligence  of  a  co- 
employee  in  failing  to  block  the 
wheels  of  tlie  car. 

"In  Stroble  v.  R.  R.  Co.  71 
Iowa,  555,  31  N.  W.  63,  a  recovery 
was  denied  to  an  employee  of  a 
railroad  comi)any  who  was  injured 
by  tlie  giving  way  of  certain  steps 
leading  up  to  a  platform  for  load- 
ing coal. 

"In  Malone  v.  R.  Co.  65  Iowa, 
417,  it  was  lirld  lliat  an  employee 


TO  WHAT   EMPLOYEES   STATUTE  APPLIES. 


65 


tion,  his  employer  at  the  moment  of  the  injury  must  be 
engaged  in  interstate  commerce,  not  generally  but  in  that 


of  a  railroad  comi)any  employed 
in  wiping  ofl"  engines,  opening  and 
closing  the  doors  of  the  engine 
house,  removing  snow  from  the 
turntable  and  tracks  and  turning 
the  turntable  when  engines  were 
being  run  between  the  main  track 
and  the  engine  house,  was  not  en- 
gaged in  the  operation  of  a  rail- 
road within  the  statute. 

"In  Eeddington  v.  R.  R.  Co.  108 
Iowa,  96,  78  X.  W.  800,  it  was 
held  that  the  railroad  company 
was  not  liable  to  a  brakeman  for 
injuries  received  while  he  was  as- 
sisting in  coaling  an  engine, 
through  the  negligence  of  a  co- 
employee  in  operating  the  hoisting 
crane  so  as  to  knock  him  from 
the  platform,  such  movement  not 
being  necessary  in  order  to  permit 
the  train  to  start. 

"The  Supreme  Court  of  Minne- 
sota has  construed  its  Employers' 
Liability  Act  as  applying  only  to 
those  employees  of  railroads  en- 
gaged in  the  operation  of  rail- 
roads. 

''In  Johnson  v.  R.  Co.  43  Minn. 
222,  45  N.  W.  15G,  8  L.  R.  A. 
419,  a  crew  of  men,  of  whom  the 
plaintiff  was  one,  were  engaged  in 
repairing  a  bridge  on  defendant's 
railroad.  In  performing  the  "'ork 
it  was  necessary  to  leave  the  draw 
partly  open.  Through  the  negli- 
gence of  one  of  the  crew  the  draw 
was  left  unfastened.  It  was 
blown  part  shut  by  the  wind  and 
injured  plaintiff  while  he  was  at 
work  between  the  stationary  part 
of  the  bridge  and  the  draw.  It 
was  held  that  the  statute  did  not 
apply. 

"In  Minnesota  Iron  Co.  v.  Kline, 
199   U.   S.   593,   26   Sup.   Ct.   Rep. 


159,  50  L.  Ed.  322,  affirming  Qli 
Minn.  63,  100  N.  W.  Rep.  681,  the 
judgment  of  the  Supreme  Court 
of  Minnesota  reported  in  93  Minn. 
63,  was  affirmed.  It  apeared  in 
that  case  that  the  court  had  al- 
lowed a  recovery  for  the  loss  of 
an  arm  by  the  plaintiff,  whilo  re- 
jiairing  an  engine  of  the  defendant, 
through  the  negligence  of  a  fel- 
low servant. 

"In  Jemmin^»  v.  R.  R.  Co.  96 
Minn.  302,  104  N.  W.  1079,  the 
plaintiff  was  injured  while  em- 
ployed by  the  railroad  company 
as  a  pitman.  He  was  one  of  a 
crew  of  nine  men  operating  a 
steam  shovel  in  a  gravel  pit,  and 
was  injured  through  the  negli- 
gence of  a  fellow  servant.  It  was 
held  that  the  statute  did  not  ap- 
ply for  the  reason  that  plaintiff 
and  his  fellow  servants  by  whose 
negligence  he  was  injured,  were 
not  engaged  in  operating  a  rail- 
road at  the  time  of  the  accident. 

"The  Kansas  statute  is  given  in 
Missouri  Ry.  v.  Mackey,  127  U. 
S.  206;  8  Sup.  Ct.  Rep.  1161;  32 
L.  Ed.  107;  affirming  33  Kan.  298; 
6  Pac.  Rep.  291.  It  was  there 
held,  affirming  the  judgment  of 
the  Supreme  Court  of  Kansas, 
that  a  fireman  on  an  engine  em- 
ployed in  transferring  cars  from 
one  point  to  another  in  a  yard 
when  it  was  run  into  by  another 
engine  owing  to  the  negligence  of 
the  engineer  oi  the  latter,  could 
recover. 

"But  in  Missouri,  K.  &  T.  R. 
Co.  V.  Medaris,  60  Kan.  151,  55 
Pac.  875,  it  was  held  that  Me- 
daris, who  was  employed  in  setting 
a  curbing  around  an  office  build- 
ing and  depot  of  the  railroad  com- 


66 


FEDERAL   EMPLOYERS'    LIABILITY    ACT. 


specific  instance,  and  in  that  identical  commerce  he  must 
be  injured  if  he  recovers  under  the  statute.* 


pany  at  Parsons,  Kansas,  could 
not  recover. 

"In  Chicago,  etc.,  E.  E.  Co.  v. 
Pontius,  154  U.  S.  209;  15  Sup. 
Ct.  Eep.  585,  39  L.  Ed.  675, 
affirming  o2  Kan.  264,  34  Pac. 
Eep.  739,  a  judgment  was  sus- 
tained n  favor  of  Pontius,  who 
was  a  bridge  builder,  the  Supreme 
Court  saying:  '  He  was  engaged 
at  the  time  the  accident  occurred 
not  in  building  a  bridge  but  in 
loading  timbers  on  a  car  for 
transportation  over  the  line  of  de- 
fendant's road.' 

"In  Chicago,  E.  I.  &  P.  E.  E.  v. 
Stahley,  62  F.  E.  363,  Mr.  Jus- 
tice Brewer,  in  an  opinion  written 
by  him  for  the  Circuit  Court  of 
Appeals  for  the  English  Circuit, 
held  that  the  statute  applied  to  a 
workman  in  a  round  house  who 
was  injured  while  getting  a  loco- 
motive ready  for  immediate  use, 
and  that  he  could  recover  for  his 
injury  notwithstanding  it  was  oc- 
casioned by  the  negligence  of  a 
follow  servant.  Mr.  Justice 
Brewer  said : 

"  'He  was  not  engaged  in  repair- 
ing an  old  engine  or  constructing 
a  new  one,  but  in  putting  that 
engine,  which  had  recently  arrived, 
in  condition  for  immediate  use. 
He  was  *  *  *  not  engaged  in  any 
outside  work  remotely  related  to 
the  business  of  the  company;  he 
was  not  cutting  ties  on  some  dis- 
tant tract  to  be  used  by  the  com- 
pany in  preparing  its  roadbed, 
nor  in  mining  coal  for  consump- 
tion by  the  engines,  nor  even  in 
the  machine  shops  of  the  company, 
constructing  or  repairing  its  roll- 
ing sU>ck ;  but  the  work  which  lie 
was  doing   was  work    directly   re- 


lated to  the  movement  of  trains — 
as  much  so  as  that  of  repairing 
the  track.' 

"In  Indianapolis  U.  Ey.  Co.  v. 
Houlihan,  157  Ind.  494,  60  N.  E. 
943,  the  court  held  that  the  stat- 
ute applied  to  a  telegraph  oper- 
ator stationed  at  a  track  junction 
and  whose  duties  required  him  to 
cross  the  railroad  tracks,  and  who, 
while  so  doing,  was  struck  by  a 
train  running  twenty  miles  an 
.hour  but  which  gave  no  warning 
of  its  approach. 

"In  Pittsburgh,  etc.,  E.  Co.  v. 
Lightheiser,  168  Ind.  438,  78  N. 
E.  1033^  the  plaintiff  was  a  pas- 
senger train  engineer  and  was 
standing  between  two  railroad 
tracks  where  he  had  gone  to  take 
cliarge  of  his  engine,  when  he  was 
knocked  down  and  injured  by  an- 
other train  of  the  railroad  com- 
pany, in-  the  city  of  Logansport, 
Indiana.  It  was  held  that  the 
statute  applied  and  that  he  could 
recover. 

"In  Southern  Ind.  E.  E.  Co.  v, 
Harrell,  161  Ind.  262,  68  N.  E. 
262,  the  railway  company  was  en- 
gaged in  the  construction  of  a 
railroad  bridge  over  White  Eiver. 
A  heavy  stone  was  being  lifted 
by  a  derrick.  One  of  the  em- 
ployees was  injured  by  the  negli- 
gent handling  of  this  apparatus, 
It  was  held  that  he  could  not 
recover  under  the  statute. 

"In  Indianapolis  &  G.  E.  Co. 
V.  Foreman.  162  Ind.  85,  69  N.  E. 
669,  the  plaintiff,  an  employee  of 
the  railroad  company  engaged  in 
the  construction  of  a  track,  was 
injured  while  l)eing  transported  to 
his  home  in  the  work  car  of  the 
company,   by   reason   of  the  negli- 


•Hammill  v.  Pennsylvania  E.  Co.       (N.  J.)  94  Atl.  313. 


TO  WHAT  EMPLOYEES   STATUTE  APPLIES. 


67 


gence  of  the  employees  of  another 
train.  It  was  held  that  he  could 
not  recover. 

"In  Pittsburg  R.  R.  Co.  v.  Ross, 
169  Ind.  3,  80  N.  E.  845,  a  switch- 
man injured  by  the  movements  of 
cars  in  a  switch  yard  was  held 
entitled  to  recover. 

"In  Indianapolis  T.  &  T.  Co.  v. 
Kinney,  by  etc.,  171  Ind.  619,  85 
N.  E.  954,  the  Supreme  Court  of 
Indiana  held  that  a  member  of  a 
section  gang  who  was  injured  by 
the  negligence  of  a  fellow  laborer 
while  unloading  steel  rails  fi-om  a 
car  could!  not  recover. 

"It  is^  however,  to  be  stated 
tliat  the  courts  in  certain  other 
states  have  been  much  more  lib- 
eral in  the  construction  of  em- 
ployers' liability  acts  than  some 
of  the  northwestern  states  whose 
opinions  we  have  cited. 

"Thus,  in  Callahan  v.  St.  L. 
Mer.  B.  Co.  170  Mo.  473,  60  L. 
R.  A.  249,  71  S.  W.  208,  affirmed 
in  194  U.  S.  628,  it  was  held  that 
where  certain  workmen  were  on  a 
railroad  trestle  which  crossed  a 
street  in  St.  Louis  and  were 
throwing  timbers  down  into  the 
street,  an  employee  of  the  com- 
pany whose  duty  it  was  to  warn 
pedestrians  was  entitled  to  re- 
cover for  an  injury  received 
through  the  negligence  of  the 
workmen  on  the  trestle,  it  being 
held  that  he  was  engaged  in  the 
operation  of  the  road. 

"In  Texas  &  P.  R.  R.  Co.  v. 
Carlin,  111  F.  R.  777.  189  U.  S. 
354,  23   Sup.  Ct.   Rep.   585,  47   L. 


Ed.  849,  it  was  held  that  an  em- 
ployee could  recover  who  was  re- 
pairing a  bridge  while  trains 
were  using  it  and  was  injured  by 
being  struck  with  a  spike  maul 
which  had  negligently  been  left  on 
the  bridge  track  by  the  bridge 
foreman. 

"In  Georgia,  etc.,  R.  Co.  v. 
Miller,  90  Ga.  571,  a  brakeman 
was  injured  while  under  a  disabled 
engine  out  on  the  road.  It  was 
held  that  he  could  recover  notwith- 
standing his  injury  was  caused  by 
tlie  negligence  of  a  fellow  servant. 

"In  Hancock  v.  Norfolk,  etc.,  R. 
R.  Co.  124  N.  C.  222,  32  S.  E.  679, 
it  was  held  that  a  section  hand 
who  was  injured  by  reason  of  the 
handcar  on  which  he  was  riding 
running  into  an  open  switch,  neg- 
ligently so  left  by  a  train  brake- 
man,  could  recover. 

"See  also  Chesapeake  &  0.  Ry. 
Co.  v.  Hoffman,  63  S.  E.  432,  con- 
struing Section  163,  Va.  Const., 
1902. 

"That  a  car  may  be  in  use  in 
interstate  commerce  although  at 
the  time  empty,  or  about  to  start 
on  a  journey,  or  designed  for  com- 
pany use  and  not  for  traffic,  would 
seem  to  be  held  in  such  cases  as 
Voelker  v.  Railway  Co.  116  F.  R. 
867,  affirmed  129  F.  R.  522.  See 
U.  S.  V.  I.  C.  R.  R.  Co.  156  F.  R. 
183;  Johnson  v.  S.  P.  Co.  196  U. 
S.  1 ;  Schlemmers  v.  V.  R.  Co.  205 
U.  S.  1;  27  Sup.  Ct.  Rep.  407; 
51  L.  Ed.  681;  reversing  207  Pa. 
St.  198;  5G  Atl.  Rep.  417;  U.  S. 
V.  C.  M.  &  St.  P.  R.  Co.,  149  F. 
R.  486,  490. 


68 


FEDERAL   EMPLOYERS'   LIABILITY   ACT. 


"But  according  to  Luiton,  J.,  in 
St.  L.  &  S.  F.  Co.  V.  Delk,  158  F.  R. 
939,  a  car  set  on  a  dead  track  for 
repair  is  not  within  the  Safety  Ap- 
pHance  Act  (used  in  interstate  com- 
merce), 'any  more  than  a  car  in  a 
shop  awaiting  repairs.' 

"If  a  train  is  engaged  in  interstate 
commerce,  any  employee  employed  on 
such  train  is  employed  in  such  com- 
merce, and  hence,  if  injured,  is  with- 
in the  act.  This  would  embrace  all 
trainmen. 

"Again,  if  switching  interstate  cars 
in  a  yard  or  delivering  interstate 
cars  by  a  terminal  company  is  en- 
gaging in  interstate  commerce,  all 
switchmen  so  employed  are  within 
the  act. 

"In  this  connection  attention  will 
be  called  to  what  is  said  by  the  Dela- 
ware Court  in  the  case  of  Winkler  v. 
Philadelphia  Railway,  4  Penn.  (Del.) 
SO;  53  Atl.  90.  This  was  an  action  for 
damages.  Winkler  is  described  aa 
head  brakeman  of  a  shifting  crew 
which  was  using  shifting  engine  Num- 
ber 1242,  and  its  tender  in  moving 
and  delivering  interstate  commerce 
cars  at  the  siding  on  the  south  side  of 
Wilmington,  the  railroad,  defendant, 
then  and  there  being  a  common  carrier 
of  passengers  and  freight.  In  charg- 
ing the  jury  the  court  said: 

"  'If  the  tender  and  car  were  then 
in  use  in  moving  local  traffic  only, 
from  point  to  point  within  the  Hmits 
of  this  state,  they  could  not  be  en- 
gaged in  interstate  commerce.  If, 
however,  the  car  being  moved  had 
come  from  a  point  out  of  the  state 
with  freight  to  be  here  delivered  it 
would  be  moving  interstate  com- 
merce. This  would  be  so  even  though 
the  ear  to  which  the  tender  was  being 
coupled  was  not  the  car  used  in  inter- 
state traffic,  if  the  removal  of  such  a 
car  was  a  necessary  step  in  getting 
out  and  moving  said  interstate  car.' 

"In  this  connection  attention  may 


also  be  called  to  the  case  of  Kansas 
City  Ry.  v.  Flippo,  138  Ala.  487; 
S.  C.  35  Sou.  457. 

"If  Justice  Brewer  is  right  in  his 
opinion  in  Chicago,  R.  I.  &  P.  R.  R. 
v.  Stahley,  62  F.  R.  363,  it  would 
seem  that  all  persons  employed  in 
round  houses,  and  all  persons  em- 
ployed in  maintaining  the  track,  and, 
it  would  follow,  bridges,  would  be 
within  the  act.  On  the  other  hand, 
persons  employed  in  the  machine 
shops  of  the  company,  constructing 
or  repairing  its  rolling  stock,  would 
not  be  within  the  act.  And  in  this 
connection,  as  to  car  repairers,  at- 
tention is  called  to  what  was  said  by 
Judge  Lurton,  as  given  above,  in 
St.  Louis  &  S.  F.  Co.  v.  Delk,  158 
F.  R.  939. 

"As  for  car  builders  and  repairers, 
clerks  in  freight  offices  and  in  general 
offices,  we  believe  that  they  will  not 
be  held  to  be  within  the  reason  of  the 
act,  and,  therefore,  not  entitled  to  its 
benefits.  We  beheve  that  the  same 
principle  will  be  applied  to  freight 
handlers.  We  believe,  however,  that 
the  act  will  be  held  to  apply  to  all 
persons  engaged  in  the  operation  and 
physical  maintenance  of  the  road." 

An  interstate  carrier  may  through 
the  same  employee  or  employees 
engage  at  the  same  time  in  inter- 
state commerce  and  at  another  time 
in  intrastate  commerce.  Connole  v. 
Norfolk  &  W.  Ry.  Co.  216  Fed.  823. 

Both  employer  and  employee  must 
be  engaged  at  the  same  time  and  place 
when  and  where  the  injury  is  sus- 
tained. Cole  v.  Atchison  &  S.  F. 
Ry.  Co.  92  Kan.  132;  139  Pac.  1177; 
Patry  v.  Chicago  &  W.  I.  R.  Co.  265 
111.  310;  106  N.  E.  843;  Myers  v. 
Norfolk  &  W.  Ry.  Co.  162  N.  C.  343; 
78  S.  E.  280;  Atlantic  Coast  Line 
R.  Co.  (Ala.);  60  So.  693;  Atlantic 
Coast  Line  R.  Co.  v.  Jones,  9  Ala. 
App.  499;  63  So.  693;  Illinois  Central 
R.  Co.  V.  Rogers,  221  Fed.  52. 


TO  WHAT  EMPLOYEES  STATUTE  APPLIES.  g9 

§  40.  Test  of  employee's  right  to  recover. — While  the 
statute,  if  both  the  employer  and  employee  were  engaged  in 
interstate  commerce  when  he  was  injured,  applies  to  every 
act  of  negligence  by  the  employer  ;^  yet  it  was  not  the  intent 
of  the  act  to  apply  to  every  negligent  injury  any  servant 
of  the  interstate  carrier  might  receive.  It  applies  in  certain 
cases  only,  leaving  some  cases  without  its  provisions.^  In 
discussing  the  application  of  this  act  the  Supreme  Court  of 
the  United  States  has  said  that  "There  can  be  no  doubt  that 
a  right  of  recovery  thereunder  arises  only  where  the  injury 
is  suffered  while  the  carrier  is  engaged  in  interstate  com- 
merce and  while  the  employee  is  employed  by  the  carrier 
in  such  commerce;"  and  it  declares  that  "The  true  test  al- 
ways is:  Is  the  work  in  question  a  part  of  the  interstate 
commerce  in  which  the  carrier  is  engaged?"^ 

A  Georgia  case  has  stated  the  case  tersely:  "1.  The  rail- 
road company  in  question  must  be  engaged  in  interstate 
commerce.  2.  It  must  be  at  the  time  of  the  injury  in  ques- 
tion be  engaged  in  that  character  of  commerce,  as  contra- 
distinguished from  such  purely  local  matters  as  it  may  also 
engage  in.  3.  The  injured  servant  must  also  at  the  time  of 
receiving  his  injury  be  engaged  in  interstate  commerce."* 
Those  three  conditions  are  necessary  in  order  to  recover.^ 
The  test  is  the  "nature  of  the  work  being  done  at  the  time 
of  the  injury, "°  "not  what  the  employee  expects  to  do  after 
the  completion  of  his  task."'^ 

»  DeAtley  v.  Chesapeake  &  O.  R.  Ry.  v.  Duvall,  225  U.  S.  477;  32  Sup. 

Co.  201  Fed.  591;  Cincinnati,  N.  O.  Ct.790;  56  L.  Ed.  1171;  Erie  R.Co.v. 

&  T.  P.  Ry.  Co.  V.  Swann,  150  Ky.  Jacobus,  221  Fed.  335;  St.  Louis,  S. 

4.58;  169  S.  W.  886;  Baltimore  &  Ohio  F.  &  T.  Ry.  Co.  v.  Scale,  229  U.  S. 

Ry.  Co.  V.  Whitacre  (Md.)  92  Atl.  156;  33  Sup.  Ct.  651;  57  L.  Ed.  1129, 

1060.  reversing  (Tex.  Civ.  App.)  148  S.  W. 

2  Baltimore  &  0.  R.  Co.  v.  Whit-  1099;  Shade  v.  Northern  Pac.  Ry.  Co. 

acre  (Md.)  92  Atl.  1060.  206  Fed.  353. 

'  Pedersen  v.   Delaware,  L.  &  W.  ■•  Charleston  &  W.  C.  Ry.  Co.  v. 

R.  Co.  229  U.  S.  146;  33  Sup.  Ct.  648;  Anchors,  10  Ga.  App.  322;  73  S.  E. 

57  L.   Ed.    1125;   3   N.   C.   C.  779;  551. 

Illinois  Cent.  R.  Co.  v.  Behrens,  233  *  Piersen  v.  N.  Y.  S.  &  W.  R.  Co. 

U.  S.  473;  34  Sup.  Ct.  646;  58  L.  Ed.  83  N.  J.  L.  661;  85  Atl.  233;  Louisville 

1051;  North  CaroHna  R.  Co.  v.  Zack-  &  N.  R.  Co.  v.  Walker,  162  Ky.  209; 

ary,  232  U.  S.  248;  34  Sup.  Ct.  305;  58  172  S.  W.  517. 

L.  Ed.  591;  Kelly  v.  Chesapeake  &  O.  « IHinois  Cent.  R.  Co.  v.  Behrens, 

Ry.  Co.  201  Fed.  602;  Grand  Trunk  233  U.  S.  473;  34  Sup.  Ct.  696;  58 

Western  Ry.  Co.  v.  Lindsay,  201  Fed.  L.  Ed.  1051. 

836,  affirmed  233  U.  S.  42;  34  Sup.  'Shanks  v.  Delaware,  L.  &  W.  R. 

Ct.  581;  58  L.Ed.  828;  Atlantic  Coast  Co.  163  App.  Div.  565;  148  N.  Y. 

Line  R.  Co.  v.  Reaves,  208  Fed.  141;  Supp.  1034. 
125  C.  C.  A.  599;  Seaboard  Air  Line 


70  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

§  41.  Effect  on  the  course  and  current  of  interstate  com- 
merce— Instrumentalities  of  interstate  commerce. — "A  test 
to  decide  if  an  injury  to  a  railroad  employee  is  within  the 
protection  of  the  act,"  declared  a  New  York  court,  "is  its 
effect  on  the  course  and  current  of  interstate  commerce.  Was 
the  employee's  relation  to  traffic  so  close  and  direct  that  his 
injury  tended  to  stop  or  delay  the  movement  of  a  train  en- 
gaged in  interstate  commerce?^  It  is  on  this  principle  that 
not  only  the  train  crew,  but  an  employee  repairing  its  track 
or  switch,  is  under  the  protection  of  the  act.  And  as  a 
bridge,  if  not  kept  in  a  suitable  condition,  may  by  its  defects 
interrupt  commerce,  the  duty  to  repair  such  an  instrumen- 
tality carries  with  it  the  protection  of  employees  so  en- 
gaged.^ And  one  working  to  repair  a  refrigerator  car,^*^  or 
at  a  shop  rei^airing  a  locomotive  that  has  been  in  interstate 
commerce,  is  held  within  the  statute. ^^  But  work  of  mill- 
wrights, installing  machine  tools  in  a  general  repair  shop, 
is  not  interstate  commerce,  even  if  such  tools  are  capable  of 
use  in  repair  of  engines  and  cars.  Many  incidents  of  rail- 
roading cannot  in  any  real  or  substantial  sense  be  inter- 
state commerce.  For  greater  facility  to  expedite  repairs,  a 
carrier  may  operate  its  own  foundry  and  forges,  with  ware- 
houses to  store  axles  and  car  wheels.  But  the  labor  in  set- 
ting up  and  maintaining  such  a  plant  is  not  thereby  made 
commerce.  It  a  car  comes  to  a  shop,  those  who  work  on  the 
car  may  be  engaged  upon  an  instrumentality  of  transporta- 
tion. The  shop  machines,  however,  like  the  supplies  within 
the  paint  shop,  have  not  reached  the  connection  with  the 
movement  of  trains  reciuired  to  bring  those  so  engaged  un- 
der the  act.  To  hold  otherwise  would  extend  the  purview 
of  the  statute  beyond  its  construction  of  the  federal 
courts. "^^  So  cleaning  stencils  used  in  marking  interstate 
cars  is  not  engaging  in  interstate  commerce. ^^ 

*  Citing   Lamphere   v.   Oregon,   R.  ^'  Citing  Law  v.  Illinois  Cent.  R. 

&  Nav.  Co.  196  Fed.  336;  116  C.  C.  A.  Co.  208  Fed.  860;  126  Fed.  27. 

156;  47  L.  R.  A.  (N.  S.)  1.  '^  Shanks  v.  Delaware,  L.  &  W.  R. 

•Citing  Pedersen  v.   Delaware,  L.  Co.   163  App.   Div.  565;   148  N.  Y. 

A  W.  It.  Co.  220  U.  S.  146;  33  Sup.  Supp.  1034.     See  also  Northern  Pac. 

Ct.  648;  57  L.  Ed.  1125;  3  N.  C.  C.  Ry.  Co.  v.  Maerkl,  108  Fed.  1;  117 

770.  C.  C.  A.  237. 

'"  Citing  Northern  Pac.  R.  Co.  v.  "Illinois  Central  R.  Co.  v.  Rogers, 

Maerkl,  108  Fed.  1;  117  C.  C.  A.  237.  221  Fed.  52. 


TO  WHAT  EMPLOYEES  STATUTE  APPLIES.  7]_ 

§  42.  Work  must  be  so  closely  connected  with  interstate 
commerce  as  to  be  a  part  of  it. — The  work  in  which  the  ser- 
vant is  engaged  at  the  time  of  his  injury  must  be  so  closely 
connected  with  interstate  commerce  as  to  be  a  part  of  it. 
The  question  is  "Was  that  work  being  done  independently 
of  the  interstate  commerce  in  which  the  defendant  w^as  en- 
gaged, or  was  it  so  closely  connected  therewith  as  to  be  a 
part  of  it  ?  Was  its  performance  a  matter  of  indifference  so 
far  as  that  commerce  was  concerned,  or  was  it  in  the  nature 
of  a  duty  resting  upon  the  carrier?"^*  In  another  case  it 
was  said  that  the  application  of  the  act  should  be  confined 
to  cases  where  "the  particular  service  in  which  the  employee 
is  engaged  is  a  part  of  interstate  commerce. "^^  "All  work 
so  closely  related  to  interstate  commerce  business  as  to  be 
practically  inseparable  from  it,  though  it  permeates  at  the 
same  intrastate  business,  is  in  reality  and  legal  eft'ect  a  part 
of  the  former."^*' 

§  43.  Intent  to  engage  in  interstate  commerce  in  the  fu- 
ture.— It  is  not  sufficient  for  the  injured  employee  to  bring 
himself  within  the  Federal  Act,  to  show  that  he  would 
shortly  have  been  engaged  in  interstate  commerce  and  that 
his  injury  was  immediately  before  the  point  of  time  such 
engagement  would  have  taken  place.  Thus  where  a  yard 
conductor  shortly  before  he  received  his  injury  was  assisting 
in  shifting  a  car  containing  interstate  traffic,  but  after  that 
service  had  been  performed  he  had  handled  a  caboose  of 
which  there  was  no  evidence  tending  to  show  that  it  was  en- 
gaged in  interstate  commerce ;  and  there  was  evidence 
that  the  next  service  he  would  have  been  required  to  perform 
would  be  in  relation  to  cars  engaged  in  interstate  commerce; 
and  when  injured  he  was  proceeding  to  his  master's  office 
in  the  yard  for  further  orders  and  directions  as  to  his  ser- 
vice, it  was  held  "that  he  was  not  then  and  there  employed 
in  moving  or  handling  cars  engaged  in  interstate  commerce. 
That  service  had  been  fully  completed  and  ended,  and  he 
had  not  reengaged  in  similar  employment,  so  there  is  no 
evidence  in  this  record,"  the  court  said,  "tending  to  prove 

i^Pedersen  v.  Delaware,  L.  &  W.  233  U.  S.  473;  34  Sup.  Ct.  646;  58 

R.  Co.  229  U.  S.  146;  33  Sup.  Ct.  648;  L.  Ed.  1051. 
57  L.  Ed.  1125;  3  N.  C.  C.  779.  '« Gaber  v.  Duluth,  S.  S.  &  A.  Ry. 

'5  Illinois  Cent.  R.  Co.  v.  Behrens,  Co.  (Wis.)  150  N.  W.  489. 


72  FEDERAL,   EMPLOYERS'    LIABILITY    ACT. 

that,  at  the  time  the  accident  actually  happened,  this  plain- 
tiff was  then  and  there  engaged  in  interstate  commerce,  and 
the  mere  fact  that  shortly  before  that  time  he  had  been  so 
engaged,  or  that  the  next  service  his  master  would  require 
would  be  of  interstate  character,  cannot  and  does  not  estab- 
lish the  fact  that  at  the  time  of  the  injury  he  was  so  en- 
gaged."^" We  do  not  believe  that  this  is  a  correct  interpre- 
tation of  the  statute  as  applied  to  the  concrete  case  before 
the  court,  and  think  the  better  interpretation  is  that  out- 
lined in  the  Wisconsin  case  noted  in  the  next  section. 

§  44.  Incidental  absence  from  scene  of  work. — ' '  Any  brief 
incidental  absence  from  the  scene  of  work  or  instrumentality 
with  therein,  which  is  not  inconsistent  with  the  employee's 
duty  to  his  employer,  does  not,  necessarily,  preclude  his 
efficiently  claiming  to  be  still  on  duty  and  engaged  in  inter- 
state commerce.  Neither  the  period  or  nature  or  continuity 
of  service  is  changed  by  such  brief  stepping  aside  from  a 
cessation  of  activity  as  that  of  customarily  visiting  a  way- 
side place  for  a  lunch,  or  other  legitimate  or  common  means 
of  refreshment,  or  waiting  after  one  task  shall  have  been 
done  for  orders  as  to  the  next  movement — the  employee  all 
the  time  being  within  customary  reach  for  continuance  of 
the  day's  service  and  holding  himself  in  readiness  to  imme- 
diate response."^® 

§  45.  Repairing  instrumentalities  of  interstate  commerce. 
— Employees  repairing  instrumentalities  of  interstate  com- 
merce, even  they  also  be  used  in  intrastate  commerce,  are 
within  the  provisions  of  the  Federal  Statute.  As  we  shall 
hereafter  see,  a  bridge  devoted  to  interstate  commerce,^^  a 
switch,  even  in  terminal  yards,^°  cars  being  repaired  in  re- 

"Erie    R.    Co.    V.    Welsh    (Ohio)  v.  Atlanta  &  C.  A.  L.  Ry.  Co.  (S.  C); 

105  N.  E.  189.  84  S.  E.  825. 

'«  Gaber  v.  Duluth,  S.  S.  &  A.  Ry.  =«  Central    R.    Co.    v.    Colasurdo, 

Co.  (Wis.)  irjO  N.  W.  4S9.     See  also  192    Fed.    901;    113   C.    C.    A.    379, 

Baltimore  &  Ohio  R.  Co.  v.  Whitacre  affirming   180   Fed.   832   (cited   with 

(Md.)    92   Atl.    \0C)O;   IMcNamara   v.  approval  in  Northern  Pac.  R.  Co.  v. 

Washington  Terminal  Co.  37  Wash.  IVIaerkl,    198    Fed.    1;    Lamphere    v. 

D.   C.  384;   New  York  Cent.  &   H.  Oregon,  etc.,   R.  Co.   19G  Fed.  336; 

R.  R.  Co.  V.  Carr,  35  Sup.  Ct.  7S0,  116  C.  C.  A.  156,  and  Carr  v.  New 

affirming  157  N.  V.  App.  Div.  941;  York,  etc.,  R.  Co.  77  N.  Y.  Misc.  346; 

142  X.  Y.  Supp.  nil.  136  N.  Y.  Supp.  501)  Jones  v.  Chesa- 

I"  IVdcrsen  v.   Delaware,  L.  <fe  W.  peake  ct  O.  R.  Co.  149  Ky.  566;  149 

R.  Co.  229  r.  S.  146;  33  Sup.  Ct.  648;  S.  W.  951. 
57  L.  K(l.  64S;  3  IT.  C.  C.  779,  revers- 
ing  197   Fed.  537;   117  C.  C.  A.  33 
(which  affirmed  184  Fed.  737;  Camp 


TO  WHAT  EMPLOYEES  STATUTE  APPLIES.  73 

pair  shops,  though  used  in  both  intrastate  and  interstate 
commerce,-^  cars  being  repaired  in  the  car  yards  or  on  a 
switch."-  In  the  Pedersen  case  the  Supreme  Court  used  this 
language:  "Tracks  and  bridges  are  as  indispensable  to  in- 
terstate commerce  by  railroads  as  are  engines  and  cars ;  and 
sound  economic  reasons  unite  with  settled  rules  of  law  in 
demanding  that  all  of  these  instrumentalities  be  kept  in 
repair.  The  security,  expedition,  and  efficiency  of  the  com- 
merce depends  in  large  measures  upon  this  being  done. 
Indeed,  the  statute  now  before  us  proceeds  upon  the  theory 
that  the  carrier  is  charged  with  the  duty  of  exercising  ap- 
propriate care  to  prevent  or  correct  'any  defect  or  insuffi- 
ciency *  *  *  in  its  cars,  engines,  appliances,  machinery, 
tracks,  roadbed,  works,  boats,  wharves,  or  other  ecjuipment' 
used  in  interstate  commerce.  But  independently  of  the  stat- 
ute, we  are  of  the  opinion  that  the  work  of  keeping  such 
instrumentalities  in  a  proper  state  of  repair  while  thus  used 
is  so  closely  related  to  such  commerce  as  to  be  in  practice  and 
in  legal  contemplation  a  part  of  it.  The  contention  to  the 
contrary  proceeds  upon  the  assumption  that  interstate  com- 
merce by  railroad  can  be  separated  into  its  several  elements, 
and  the  nature  of  each  determined  regardless  of  its  relation 
to  others  or  to  the  business  as  a  whole.  But  this  is  an  er- 
roneous assumption.  The  true  test  always  is:  Is  the  work 
in  question  a  part  of  the  interstate  commerce  in  which  the 
carrier  is  engaged?"-^  The  court  again  declares:  "True, 
a  track  or  bridge  may  be  used  in  both  interstate  and  intra- 
state commerce,  but  when  it  is  so  used  it  is  none  the  less  an 
instrumentality  of  the  former;  nor  does  its  double  use  pre- 
vent the  employment  of  those  who  are  engaged  in  its  repair 
or  in  keeping  it  in  suitable  condition  for  use  from  being  an 
employment  in  interstate  commerce."  In  this  case  the  em- 
ployee was  carrying,  when  injured,  some  bolts  or  rivets  to 

"  Northern  Pac.  R.  Co.  v.  Maerkl,  by   the   judgment   in   that   decision. 

198  Fed.  1;  Law  v.  Illinois  Central  The  injured  employee  was  replacing  a 

R.  Co.  208  Fed.  869;  Missouri,  K.  &  drawbar  and  was  injured  through  the 

T.   Ry.   Co.   V.   Denahy    (Tex.)    165  negligence  of  his  fellow  servants  in 

S.  W.  529.  charge  of  the  train. 

"  Second  Employers'  Liability  ^^  Pedersen  v.  Delaware,  L.  &  W. 
Case,  223  U.  S.  1;  33  Sup.  Ct.  169;  R.  Co.  229  U.  S.  146;  33  Sup.  Ct.  648; 
56  L.  Ed.  327.  This  differs  from  the  57  L.  Ed.  1125;  3  N.  C.  C.  779,  re- 
case  of  Walsh  V.  New  York,  N.  H.  &  versing  197  Fed.  537;  117  C.  C.  A.  33, 
H.  R.  R.  Co.,  one  of  the  cases  affirmed  which  affirmed  184  Fed.  737. 


74  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 

an  interstate  railroad  bridge  to  be  used  the  next  morning 
in  repairing  it,  this  repairing  to  consist  in  taking  out  an 
existing  girder  and  inserting  a  new  one.  It  was  insisted 
that  at  the  time  of  his  injury  he  was  not  engaged  in  remov- 
ing the  old  girder  and  inserting  the  new  one,  but  only  carry- 
ing to  the  place  where  that  work  was  to  be  done  the  next 
day  some  bolts  or  rivets  to  be  used  therein,  but  the  court  did 
not  consider  this  contention  sound,  saying :  ' '  We  think  there 
is  no  merit  in  this.  It  was  necessary  to  the  repair  of  the 
bridge  that  the  materials  be  at  hand,  and  the  act  of  taking 
them  there  was  a  part  of  that  work.  In  other  words,  it  was 
a  minor  task  which  was  essentially  a  part  of  the  larger  one, 
as  is  the  case  when  an  engineer  takes  his  engine  from  the 
roundhouse  to  the  track  on  which  are  the  cars  he  is  to  haul 
in  interstate  commerce."-^  An  employee  operating  a  steam 
shovel  on  the  roadbed  of  an  interstate  railroad  is  within  the 
Federal  Act.-^ 

§  46.  Original  construction  of  interstate  commerce  instru- 
mentalities.— The  courts  show  a  distinction  between  instru- 
mentalities devoted  to  use  in  interstate  commerce  and  in- 
strumentalities that  are  designed  to  be  devoted  to  that  use, 
and  properly  so.  Thus  in  a  leading  case  this  language  was 
used:  "Of  course,  we  are  not  here  concerned  with  the  con- 
struction of  tracks,  bridges,  engines,  or  cars  which  have 
not  as  yet  become  instrumentalities  in  such  commerce,  but 
only  with  the  work  of  maintaining  them  in  proper  condition 
after  they  have  become  such  instrumentalities  and  during 
their  use  as  such."-*^  And  in  a  case  in  one  of  the  Cirouit 
Court  of  Appeals,  Judge  Sanborn,  after  declaring  that  the 
act  protects  only  those  employed  in  interstate  commerce, 
said:     "Those  employed  in  the  preparation  or  construction 

^*  Since  this  decision  was  rendered,  used   for  interstate  business."     Eng 

the  case  of  Taylor  v.  Southern  R.  Co.  v.  Southern  Pac.  Co.  210  Fed.  92. 

178  Fed.  380,  cannot  be  regarded  as  "  Tralich  v.  Chicago,  M.  &  St.  P. 

an  authority.  Ry.  Co.  217  Fed.  675;  Lombardo  v. 

"The   principle   seems   to   be   that  Boston  &  M.  R.  Co.  223  Fed.  427. 

one    employed    at    the    time    of    his  ""  Pedersen  v.  Delaware,  L.  &  W. 

injury  in  the  u.se  of  or  maintaining  R.  Co.  229  U.  S.   140;  33  Sup.  Ct. 

in   proper  condition   any  instrumen-  648;  57  L.  Ed.  1125;  3  N.  C.  C.  779, 

tahty  or  appliance  u.sed  by  the  carrier  reversing  107  Fed.  .537;  113  C.  C.  A. 

in  interstate  commerce  comes  within  33,  which  affirmed  184  Fed.  737;  Wa- 

this    statute,    although    such    instru-  bash   R.   R.  Co.  v.   Hayes,  2.34  U.  S. 

mentality  or  appliance  may  also  be  8();  34  Sup.  Ct.  729;  58  L.  Ed.  1226; 

.Jackson  v.  Chicago,  M.  St.  P.  Ry.  Co. 
210  Fed.  495. 


TO  WHAT  EMPLOYEES  STATUTE  APPLIES.  75 

of  roadbeds,  rails,  ties,  cars,  engines,  and  other  instrumen- 
talities which  are  intended  for  use  in  interstate  commerce, 
but  have  never  been  and  are  not  in  use  therein,  are  not 
employed  in  interstate  commerce,  and  are  not  protected  by 
that  act."  And  so  it  was  held  that  an  employee  engaged 
in  the  construction  of  a  bridge,  on  a  cut-off  more  than  a  mile 
in  length,  which  had  never  been  provided  with  rails,  or 
used  as  a  railroad,  was  not  employed  in  interstate  commerce, 
although  his  employer  was  so  engaged  and  intended  to  use 
the  cut-off  therein  when  completed.-'  So  where  a  laborer  on 
a  construction  train  was  injured  a  similar  ruling  was  made. 
In  that  case  the  railway  company  was  constructing  another 
track  so  that,  when  completed,  it  would  have  a  double  in- 
stead of  a  single  track  railway.  He  was  one  of  a  train  crew 
employed  on  a  work  train  engaged  in  hauling  ties  for  dis- 
tribution along  the  right  of  way,  which  ties  were  intended  to 
be  used  in  the  new  track.  The  grade  for  this  new  track  was 
not  yet  finished.  The  work  train  moved  along  the  rails  of 
the  existing  track,  which  was  then  used  in  interstate  com- 
merce, and  the  ties  were  thrown  to  the  side  along  the  line 
of  the  new  grade.  The  operation  of  the  work  train  was 
wholly  within  the  state,  and  no  part  of  the  proposed  track 
had  been  used  for  any  purpose,  but  when  completed  it  was 
intended  to  be  used  in  the  transportation  of  interstate  traf- 
fic. It  was  held  that  the  injured  employee  did  not  come 
within  the  Federal  Act.-* 

§  47.    Impeding  the  progress  of  interstate  commerce. — 

Many  statements  are  made  in  the  decisions  that  anything 
which  tends  to  impede,  hinder  or  delay  the  transportation 
of  interstate  commerce  falls  within  the  Federal  Liability 
Act,  and  they  construe  that  an  injury  to  an  employee  who 

-'  Bravis  v.  Chicago,  M.  &  St.  P.  upon  an  instrumentality  during  the 

Ry.  Co.  217  Fed.  234.    But  not  after  day  that  had  already  been  devoted  to 

the  track  is  used  by  interstate  trains.  and   was   then   in   use   in   interstate 

Clark    V.    Chicago    G.    W.    R.    Co.  commerce. 

(Iowa)  152  N.  W.  635.  -"  Chicago  &  E.  R.  Co.  v.  Steele 

In    this    case    Bravis   was   injured  (Ind.)    108   N.   E.   4.      In   Grow   v. 

while  going  to  his  work  on  a  hand  Oregon   Short   Line    R.    Co.    (Utah) 

car,   and   the   court   distinguished   it  138  Pac.  398,  is  an  inferential  state- 

from  San  Pedro  v.  L.  A.  &  S.  L.  R.  ment  contrary  to  the  holding  in  the 

Co.  210  Fed.  870;    127  C.  C.  A.  454,  Indiana    case.      Tearing    down    old 

where    the    employee     was    injured  roundhouse    to    build    a    new    one. 

while  also   going   to   his   work  on  a  Thomas  v.  Boston  &  M.  R.  R.  218 

hand  car,  by  calling  attention  to  the  Fed.  113. 
fact  that  he  was  engaged  in  working 


76  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

sustains  such  a  relation  to  that  commerce  that  his  injury 
will  or  even  may  have  a  tendency  to  impede,  hinder  or  delay 
it  is  entitled  to  bring  his  action  under  that  statute.  Thus  in 
a  New  York  court  it  was  said:  "A  test  to  decide  if  an  injury 
to  a  railroad  employee  is  within  the  protection  of  the  act 
is  its  effect  on  the  course  and  current  of  interstate  commerce, 
"Was  the  employee's  relation  to  traffic  so  close  and  direct 
that  his  injury  tended  to  stop  or  delay  the  movement  of  a 
train  engaged  in  interstate  commerce?-"  It  is  on  this  prin- 
ciple that  not  only  the  train  crew,  but  an  employee  repairing 
its  track  or  switch,  is  under  the  protection  of  the  act.  And 
as  a  bridge,  if  not  kept  in  suitable  condition,  may  by  its  de- 
fects interrupt  commerce,  the  duty  to  repair  such  instru- 
mentalities carries  with  it  the  protection  of  employees  so 
engaged.^"  And  one  working  on  a  refrigerator  car,^^  or  at 
a  shop  repairing  a  locomotive  that  has  been  in  interstate 
commerce,  is  held  to  be  within  the  statute.^- 

§  48.  Track  repairer. — A  track  repairer  engaged  in  re- 
pairing a  track  over  which  both  interstate  and  intrastate 
trains  move  is  embraced  within  the  provisions  of  this  statute. 
"The  track  of  a  railroad  company  engaged  both  in  interstate 
and  intrastate  commerce  is,  while  essential  to  the  latter,  in- 
dispensable to  the  former.  It  is  equally  important  that  it 
be  kept  in  repair.  When  the  traffic  itself  is  not  in  fact 
interstate,  although  upon  a  railroad  engaged  in  commerce 
between  the  states,  such  as  trains  devoted  entirely  to  local 

"  Citing  Lamphere  v.   Oregon  R.  v.  Illinois  C.  R.  Co.  (III.)  109  N.  E. 

&  Nav.  Co.  196  Fed.  33G;    116  C.  C.  342. 

A.  156;  47  L.  R.  A.  (N.  S.)  1.  "The  effect  of  a  personal  injury  to 

*"  Citing  Pedersen  V.  D.  L.  &  W.  R.  plaintiff,   incapacitating  him  for  the 

Co.  229  U.  S.  146;   33  Sup.  Ct.  648;  duties  of  his  employment,  tended  to 

57  L.  Ed.  1125;   3  N.  C.  C.  779.  hinder  the  movement  or  impede  the 

^'  Citing  Northern  Pac.  R.  Co.  v.  progress  or  safety  of  a  train  engaged 

Maerkl,  198  Fed.  1;   117  C.  C.  A.  237.  in   interstate   commerce,   and   would 

'^  Shanks  v.  Delaware,  L.  &  W.  R.  come  under  the  purview  of  the  Federal 

Co.   163  App.  Div.  565;    148  N.  Y.  Employers'    Act."      Atlantic    Coast 

Supp.    1034;    citing   Law   v.    Illinois  Line  R.  Co.  v.  Jones,  9  Ala.  App.  499; 

Central    R.   Co.   208   Fed.   869;    112  63  So.  693. 
C.  C.  A.  27.    Car  iu  the  yard,  Staley 


TO  WHAT  EMPLOYEES  STATUTE  APPLIES.  77 

business  and  wholly  within  the  borders  of  a  state,  a  different 
case  is  presented.  There  it  is  possible  to  identify  what  is 
and  what  is  not  interstate ;  but  when,  as  in  this  case,  a  road 
is  admittedly  engaged  in  both,  it  becomes  impossible  to  say 
that  particular  work  done  results  directly  for  the  benefit  of 
one  more  than  the  other.  Manifestly  it  is  for  the  accommo- 
dation of  both,  to  hold,  then,  that  a  workman  engaged  in 
repairs  upon  the  track  of  such  a  carrier  is  not  furthering 
interstate  commerce  or  would  be  to  deny  the  power  to 
control  and  is  a  desirable  instrument  for  commercial  inter- 
course between  the  states — to  deny  the  power  of  Congress 
over  interstate  commerce — but  that  the  power  extends  to 
the  control  of  their  instrumentalities  through  which  such 
commerce  is  carried  on  is  not  an  open  question."  ^ 

"No  doubt  there  may  be  situations,  indeed  we  have  the 
highest  authority  for  it  ^  when  instrumentalities  that  may 
be  used  for  interstate  or  intrastate  traffic,  or  both,  but  which 
at  the  time  are  not  being  used  for  either,  as  the  engines  or 
cars  are  undergoing  repair,  or  in  cases  of  clerical  work  or 
when  the  acts  or  things  done  are  not  physically  or  otherwise 
directly  connected  with  the  moving  of  traffic,  where  there 
could  be  no  ground  for  claiming  liability  under  the  Act  of 
Congress,  even  though  the  carrier,  in  fact  be  engaged  in 
interstate  as  well  as  local  traffic.  But  where  the  employment 
necessarily  and  directly  contributes  to  the  more  extended 
use  and  without  which  interstate  traffic  could  not  be  carried 
on  at  all,  no  reason  appears  for  denying  the  power  over  the 
one,  although  it  may  indirectly  contribute  to  the  other.  The 
particular  question  is  an  apt  illustration  of  the  intricacies 
to  which  our  dual  system  of  government  often  leads;  but 
the  intricacy  is  but  an  incident,  and  it  can  neither  defeat 
nor  impair  the  power  of  Congress  over  interstate  commerce. 

2  Citing  and  quoting  from  Inter-  826;    29    L.   Ed.    158;    Weldon   v. 

state     Oommerce     Oommission     v.  Wisconsin,  91  U.  S.  275 1  23  L.  E4. 

Illinois   Central  R.  Co,  215  U.  ,S.  347. 

4.-52;    30   Sup.   Ct.    1<55;    54  L.   Ed.  3  Citing   Employers'   Liability 

280;  Gloucester  Ferry  Co.  v.  Penn-  Cases,  207  U.  S.  495;   28  ,Sup.  Ct 

sylvania,  114  U.  S.  19G;  5  Sup.  Ot.  141;  52  L.  Ed.  297. 


yg  FEDERAL,   EMPLOYERS'    LIABILITY   ACT. 

Since  the  track,  in  the  nature  of  things,  must  be  maintained 
for  commerce  between  the  states,  the  work  bestowed  upon  it 
inures  to  the  benefit  of  such  commerce.  It  is  therefore 
subject  to  the  Federal  control,  even  though  it  may  con- 
tribute to  carriage  wholly  within  the  state.  Being  insepar- 
able, yet  interstate  commerce  inherently  abiding  in  the 
thing  to  be  regulated,  as  to  the  track,  the  state  jurisdiction 
must  give  way,  or  at  least  it  can  not  defeat  the  superior 
power  of  Congress  over  the  subject-matter,  whenever  a 
carrier  is  using  the  track  for  the  double  purpose."* 

§  49.,  Statute  includes  everybody  Congress  could  include; 
same  persons  in  different  capacities;  track  repairer;  tele- 
graph operator. — It  has  been  held  that  a  track  repairer  on 
an  interstate  railroad  was  within  the  provisions  of  this 
statute.  So  much  of  the  opinion  of  the  court  as  relates  to 
the  subject  is  as  follows:  **The  present  act  *  *  *  I  think 
should  therefore  be  construed  ^  as  intending  to  include 
within  the  term  'person  employed  in  such  commerce'  all 
those  persons  who  could  be  so  included  within  the  consti- 
tutal  power  of  Congress,  that  is  to  say,  the  act  meant  to 
include  everybody  Congress  could  include.  Under  this  con- 
struction the  inquiry  becomes  whether  Congress  could  con- 
stitutionally have  passed  a  statute  regulating  the  relation 

*Zikos  V.  Oregon  R.  &  N.  Co.  179  Co.  v.  Kemp,  140  Ga.  657;  79  S.  E. 

Fed.  893,  citing  In  re  Debs,  158  Fed.  558;  Clark  v.  Chicago  G.  W.  R.  Co. 

564;  15  Sup.  Ct.  500;  39  L.  Ed.  1092  (Iowa)  152  N.  W.  635.    Wiring  rails 

and£x/>or/eSiebold,100U.S.371;25  together.     Glunt  v.  Pennsylvania  R. 

L.  Ed.  717.    A  track  laborer  injured.  Co.  (Pa.)  95  Atl.  109;  Texas  &  P.  Ry. 

Grow  V.  Oregon  Short  Line  R.  Co.  44  Co.  v.  White   (Tex.  Civ.  App.)   177 

Utah  591;  138    Pac.  398,    operating  S.  W.  1185;  Willever  v.  Delaware,  L. 

Bteam  shovel  on  road  bed.     Tralich  &   W.   R.   Co.    (N.  J.)   94  Atl.  595; 

v.  Chicago,  M.  &  St.  P.  Ry.  Co.  217  Glunt  v.  Pennsylvania  R.  Co.  (Pa.) 

Fed.  675.    The  same  result  has  been  95  Atl.  109.     Lifting  a  car.    Texas  & 

reached  in  a  number  of  cases.    Char-  P.  Ry.  Co.  v.  White  (Tex.  Civ.  App.) 

peski    v.    Great    Northern    Ry.    Co.  177  S.  W.   1185. 

(Minn.)  1.50    N.    W.    1091;    Sanders  The  same  result  was  reached  in  the 

V.  Charleston  &  W.  C.   Ry.  Co.  97  case   of   an   employee   injured   by   a 

S.  C.  50;  81   S.   E.   283;  Tralich   v.  local  train  while  repairing  a  switch. 

Chicago,   M.  &  St.   P.   Ry.  Co.  217  Colasurdo    v.    Central    Railroad    of 

Vad.  ()75;  Norfolk  &  W.  Ry.  Co.  v.  New  Jersey,   180  P'ed.  832,  affirmed 

Holbrook,  215  Fed.  687;  Truosdell  v.  192  Fed.  901;  113  C.  C.  A.  379. 

Chesapeake  <t  O.  R.  Co.  159  Ky.  718;  <■  This  said  in  view  of  the  fact  that 

169    S.    W.    471    (repairing    switch);  the  statute  was  enacted  to  escape  the 

Jones  v.  Chesapeake  &   ().   Hy.   Co.  invalidity  of  the  Act  of  1906  as  pointed 

149  Ky.  .566;  149  S.  W.  9.')1  (repairing  out  in  the  Employers'  Liabihty  Cases, 

switch);  Stafford  v.  Norfolk  A:  \V.  Ry.  207  U.  S.  463;  28  Sup.  Ct.  141;  52 

Co.  202  Fed.  605;  Louisville  &  N.  R.  L.   Ed.   297. 


TO  WHAT   EMPLOYEKS'    STATUTE  APPLIES.  79 

between  a  carrier-master  and  a  servant  who  was  engaged 
in  the  repair  of  a  track  used  for  both  interstate  and  intra- 
state commerce.  Preliminarily  the  distinction  should  be 
noted  that  the  act  will  not  necessarily  apply  to  the  same 
person  in  all  details  of  his  employment.  One  man  might 
have  duties  including  both  interstate  and  intrastate  com- 
merce, and  he  would  be  subject  to  the  act  while  engaged  in 
one  and  not  the  other.  This  being  so,  the  question  is 
whether  his  repairing  of  a  switch  is  such  employment,  when 
the  switch  is  used  indifferently  in  both  kinds  of  commerce. 
Suppose  the  track  had  crossed  a  comer  of  a  state,  and  there 
was  only  one  station  within  that  state  so  that  all  trains 
crossing  over  that  track  must  necessarily  be  engaged  in 
interstate  commerce.  Would  not  a  track  worker  engaged  in 
the  repair  of  such  a  track  be  engaged  in  interstate  commerce  ? 
I  do  not  think  that  he  "would  be  any  the  less  so  engaged  than 
the  engineer  on  the  locomotive  or  the  train  dispatcher  who 
kept  the  trains  at  proper  intervals  for  safety.  Of  course,  it 
is  not  necessary  that  the  man  must  personally  cross  a  state 
line.  If  the  repair  of  such  a  track  be  interstate  commerce, 
does  it  cease  to  be  such  because  there  are  two  stations 
within  the  state  and  some  of  the  trains  start  at  one  and 
stop  at  the  other?  I  cannot  think  that  this  is  true,  although 
counsel  have  referred  me  to  no  case  upon  the  subject  and  I 
have  found  none.  The  track  is  none  the  less  used  for  inter- 
state commerce,  because  it  is  •  also  used  for  intrastate 
commerce,  and  the  person  who  repairs  it  is,  I  think, 
employed  in  each  kind  of  commerce  at  the  same  time. 

Despite  the  earlier  ruling  in  Gibbons  v.  Ogden,^  it  has  in 
recent  times  been  stated  several  times  by  the  Supreme  Court 
that  state  statutes  may  indirectly  regulate  interstate 
■commerce,  even  though  Congress  may  at  any  time  itself 
under  its  proper  constitutional  powers,  enact  a  provision  of 
'directly  opposite  tenor.'^  If,  as  was  held  in  those  cases,  a 
state  has  the  power  to  regulate  such  commerce  until  Con- 
gress intervenes,  because  it  is  as  well  within  the  state's 
proper  powers,  must  not  the  corollary  be  true  as  well,  that 
Congress  may  intervene,  even  when  the  effect  of  that  inter- 
vention be  incidentally  the  regulation  of  intrastate  commerce 
as  well?    Could  not  Congress,  for  example,  provide  that  all 

6  9  Wheat.  1;   6  L.  Ed.  23.  v.    Colorado,    187    U.   S.    137;    23 

7  Citing   Sherlock   \.   Ailing,   93      Sup.  Ct.  92;  47  L.  Ed.  108. 
U.   S.    99;    23    L.   Ed.   819;    Keid 


gQ  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

tracks  used  in  interstate  eonmieree  must  be  of  a  standard 
width  and  weight?  Would  that  not  affect  all  tracks  used 
in  such  commerce,  although  they  likewise  were  used  for 
intrastate  commerce  ?  Of  course,  anyone  could  use  any  other 
tracks  he  chose  for  intrastate  commerce ;  but  it  can  surely 
not  be  a  ground  to  limit  Congress's  proper  powers  that  the 
track  has  a  joint  use.  If  so,  the  repair  of  such  tracks  must 
be  a  part  of  interstate  commerce,  and  under  the  Employers' 
Liability  Cases,®  the  relations  of  master  and  servant  arising 
between  the  railroad  and  its  employees  engaged  in  repairing 
the  track  are  similarly  within  the  power  of  Congress. 

I  am  therefore  of  opinion  that  the  plaintiff  was  at  the  time 
engaged  in  interstate  commerce  and  entitled  to  the  rights 
secured  bj^  this  act.  That  being  so,  it  is  a  matter  of  no  icon- 
sequence  whether  the  train  that  struck  him  was  engaged  in 
that  commerce  or  not.  It  is  true  that  the  act  is  applicable 
to  carriers  only  ''while  engaged"  in  interstate  commerce, 
but  that  includes  their  activity  when  they  are  engaging  in 
such  commerce  by  their  own  employees.  In  short,  if  the 
emploj^ee  was  engaged  in  such  commerce,  so  was  the  road, 
for  the  road  was  the  master,  and  the  servant's  act  is  its  act. 
The  statute  does  not  say  that  the  injury  must  arise  from  an 
act  itself  done  in  interstate  commerce,  nor  can  I  see  any 
reason  for  such  an  implied  construction. ' '  ^ 

§  50.  Car  repairer  in  switching  yard. — In  a  ease  brought 
to  recover  damages  it  was  shown  that  the  plaintiff'  had  been 
sent  "to  one  of  the  different  railroad's  yards  and  assigned 
to  the  work  of  coupling  up  air  hose,  looking  over  brakes  to 
see  if  they  were  all  right,  and  to  shop-mark  any  brake  that 
was  found  broken."  On  the  date  of  the  injury  an  employee 
of  the  railroad,  whose  work  was  to  couple  up  the  air  hose 
and  make  such  light  repairs  as  could  be  done  upon  the 
switching  track,  was  unable  to  perform  his  duty  that  day, 
and  the  plaintiff  was  assigned  and  directed  to  do  his  work. 

8  207  U.  S.  463;  28  Sup.  Ct.  141;  Southern  Pac.  Co.  64  Ore.  597;  131 

52  L.  Ed.  297.  Pac.  507. 

•  Colasurdo    v.    Central    R.    P..    of  The  hability  of  the  carrier  for  in  • 

N.  J.  ISO  Fed.  832,  affirrruid  192  Fed.  juries  suffered  by  a  member  of  the 

901;   ll'i  C.  C.  A.  379.     The  words  crew    in    the    course    of    the    general 

"any  pc^rson"  used  in  the  first  section  work   was   subject   to    regulation   by 

of  th«!  stjitute  Hlu)uld  i)e  construed  to  Congress,     whether     the     particular 

indufje  everj'  person  who  can  be  so  in-  service  being  performed  at  the  time 

eluded  within  the  purview  of  the  con-  of  the  injury,   i.solatedly  considered, 

Btitutifinal     power     of     the     Federal  was  in  interstate  or  intrastate  com- 

Governrnent.       Ilorton     v.     Oregon,  men^e.       Illinois    Cent.     R.     Co.     v. 

Washington  R.  &  Nav.  Co.  72  Wash.  Behrens,  233  U.  S.  473;  33  Sup.  Ct. 

503;   130  Pac.  897;   Montgomery  v.  648;  57  L.  Ed.  1125. 


TO  WHAT  EMPLOYEES  STATUTE  APPLIES.  3^ 

The  tracks  upon  which  this  work  was  done  were  not  repair 
tracks,  but  were  switching  tracks ;  and  the  ear  which  caused 
his  injury  was  on  a  track  upon  which  was  run  cars  to  be 
delivered  to  another  railroad.  In  coupling-  up  the  air  hose 
of  the  cars  on  this  track  he  found  one  car  with  a  defective 
coupler  which  he  attempted  to  remedy  so  as  to  couple  the 
cars  and  the  air  hose,  but  was  injured  while  between  it  and 
the  next  car  by  some  cars  "kicked"  on  to  the  track  which 
suddenly  caused  the  defective  car  to  move  and  injure  him. 
This  car  was  not  equipped  as  the  Safety  Appliance  Act 
required.  It  was  held  that  the  plaintiff  was  entitled  to 
recover  because  this  car  was  not  equipped  as  the  Safety 
Appliance  Act  required  whereby  the  plaintiff  was  injured; 
and  also  that  the  Employers'  Liability  Act  applied  to  him. 
"In  moving  the  car  in  question,"  it  was  said  the  plaintiff 
*'was  engaged  in  interstate  commerce,"  and  he  was  em- 
ployed by  the  company ' ' in  said  commerce. "  "  It  is  argued, ' ' 
said  the  court,  "that  the  Employers'  Liability  Act  can  have 
no  application  to  the  case,  as  plaintiff  was  not  an  employee 
engaged  in  interstate  commerce.  A  part  of  his  employment 
was  to  see  to  the  coupling  of  the  car  and  the  air  hose  upon 
the  'Cars  which  were  placed  upon  the  transfer  tracks.  Some 
of  the  cars,  among  them  the  one  in  question,  were  engaged 
in  interstate  commerce.  It  is  difficult  to  see  why  he  was  not 
an  employee  engaged  in  the  movement  of  interstate  com- 
merce to  as  full  an  extent  as  a  switchman  engaged  in  the 
making  up  of  trains  in  the  railroad  yards,  or  in  the  case 
of  Chicago  Junction  Railroad  Company  v.  King}'^  From  a 
consideration  of  the  whole  case,  we  think  the  defendant  or 
railroad  company  was  engaged  in  interstate  commerce ;  that 
the  car  in  question  had  upon  it  a  coupler  which  was  defec- 
tive and  did  not  comply  with  the  Act  of  Congress ;  that  at 
the  time  plaintiff  was  injured  the  movement  of  the  car  was  a 
movement  by  defendant  in  interstate  commerce ;  that  plain- 
tiff was  injured  while  a  servant  of  defendant  and  in  the 
performance  of  his  duty,  aiding  in  the  movement  of  inter- 

10  169  Fed.  372;  94  C.  C.  A.  652,  affirmed  32  Sup.  Ct.  79. 


82  FEDERAL   EMPLOYERS'    LIABILITY   ACT, 

state  commerce ;  that  the  movement  of  the  car  with  the 
defective  coupler  was  the  proximate  cause  of  plaintiff's  in- 
juries; that  plaintiff  did  not  assume  the  risk  of  injury  inci- 
dent to  the  employment.  "^^ 

§  51.  Laying  additional  track  on  bridge;  injury  by  inter- 
state train. — A  railway  company  was  engaged  in  both  inter- 
state and  intrastate  traffic  at  the  time  its  employee  was 
injured.  At  the  time  of  the  injury  the  company  was  building 
an  additional  track  on  the  line,  part  of  which  was  laid  on  a 
bridge.  The  employee  was  engaged  in  the  bridge  construc- 
tion, and  he  was  injured  while  carrying  material  from  one 
part  of  the  work  to  another  by  a  local  train  running  between 
two  points  within  the  same  state.  This  train  was  engaged 
wholly  in  intrastate  business.  It  was  held  that  he  could 
recover  under  this  statute,  and  that  he  came  within  its  pro- 
visions. The  lower  court  declined  to  follow  the  Zikos  case^^ 
and  the  Colasurdo  case,^^  and  considered  that  the  plaintiff 
was  "injured  by  an  act  of  the  defendant  done  in  the  per- 
formance of  purely  intrastate  business,"  and  for  that  reason 
entered  judgment  in  favor  of  the  defendant,  but  its  decision 
was  reversed.^* 

§  52.  Loading  railroad  iron  rails ;  burden. — "Whether  or 
not  an  employee  injured  while  loading  rails  for  an  interstate 
railroad  is  engaged  in  interstate  commerce  has  not  been  de- 
cided, but  it  would  seem  that  he  is.  A  case  somewhat  of 
this  character  was  decided  in  the  Supreme  Court  of  the 
State  of  Washington,  but  the  question  whether  or  not  such 
an  employee  came  within  the  provisions  of  this  statute  was 

"  Johnson  v.  Great  Northern  Ry.  '^  Colasurdo   v.   Central  R.   R.  of 

Co.  178  Fed.  643.     "Whether  plain-  N.  J.  180  Fed.  832. 
tiff    was    guilty    of    any    negligence  '^  Pedersen  v.  Delaware,  L.  &  W. 

which  contributed  to  the  injury  was,  R.  Co.  229  U.  S.  146;  37  Sup.  Ct.  648; 

if  applicable,  a  question  for  the  jury."  57  L.  Ed.   1125;    reversing  197  Fed. 

Machinist    going    through    yard    to  537;    117  C.  C.  A.  33,  which  affirmed 

repair  an  interstate  locomotive.  Staley  184  Fed.  737. 

V.  Illinois  Cent.  II.  Co.  (111.)  109  N.  E.  Relaying  rails  on  a  track  used  for 
342,  reversing  186  111.  App.  593.  interstate  traffic  is  engaging  in  inter- 
In  the  case  of  Chicago  Junction  Ry.  state  commerce.  Sanders  v.  Charles- 
Co.  V.  King,  169  Fed.  372,  94  CCA.  ton  &  W.  C  Ry.  Co.  97  S.  C  50;  81 
652,  affirmed  32  Sup.  Ct.  79,  the  per-  S.  E.  283;  Tralick  v.  Chicago,  M.  & 
son  injured  was  a  switchman  em-  St.  P.  Ry.  Co.  217  Fed.  675;  Jackson 
ployed  in  the  Union  Stock  Yards  of  v-  Railway  Co.  210  Fed.  495;  Char- 
Chicago  whenr  the  injury  was  in-  pcski  v.  Great  Northern  Ry.  Co- 
flicted  upon  him  while  he  was  between  (Minn.)  150  N.  W.  1091. 
two  cars  trying  to  replace  the  broken 
part  of  a  coupler. 

'^ZikoH   v.   Oregon   R.   &   N.   Co. 
179  Fed.  893. 


TO  WHAT  EMPLOYEES   STATUTE  APPLIES.  g3 

not  decided ;  although,  a  recovery  having  been  had  upon  this 
statute,  the  case  was  reversed  because  it  was  "not  shown 
whether  the  rails  were  old  or  new,  where  they  came  from, 
where  they  were  to  be  taken,  or  where  the  car  was  to  go 
when  loaded.  The  respondent's  theory  sems  to  be  that,"  con- 
tinued the  court,  "because  the  appellant  was  authorized  to, 
and  did  at  times,  engage  in  interstate  commerce,  and  because 
the  respondent  was  employed  in  loading  a  fiat  car  with  rails 
which  had  been  used  or  were  to  be  used  in  the  repair  of  its 
roadbed  in  the  State  of  Montana,  he  was  necessarily  engaged 
in  interstate  commerce  within  the  meaning  of  the  act.  We 
can  not  assume  that  every  employee  of  appellant,  by  reason 
of  his  employment,  is  so  engaged.  Appellant  may  have  thou- 
sands of  employees  whose  duties  do  not  partake  of  that 
character.  If  the  act  in  question  is  constitutional,  it  is  so 
because  it  applies  only  to  servants  engaged  in  interstate  com- 
merce. If  it  is  broad  enough  to  include  this  case  in  its  pro- 
visions, it  is,  in  our  opinion,  open  to  the  same  objections 
which  rendered  the  earlier  act  unconstitutional.  If  re- 
spondent is  to  avail  himself  of  the  benefits,  the  burden  de- 
volves upon  him  to  show  that  the  duties  which  he  was  per- 
forming while  an  employee  of  the  appellant  were  of  a  char- 
acter that  directly  pertained  to  and  were  a  part  of  interstate 
commerce.  No  such  showing  was  made,  and  appellant's  mo- 
tion for  a  directed  verdict  should  have  been  sustained.  "^^ 

§53.  "While"  railroad  was  "engaging  in"  interstate 
commerce. — Divergent  views  have  prevailed  over  the  phrase 
"while  engaging"  in  interstate  commerce  as  applied  to  the 
railroad  company.   Thus  an  employee  was  injured  while  re- 

"  Tsmura  v.  Great  Northern  Ry.  an   interstate  track  was  not   within 

Co.    58   Wash.    318;    108    Pac.    774.  the   statute;   but   that   decision,  was 

See  Van  Vrimmer  v.  Texas  &  P.  Ry.  rendered  before  the  decision  in   the 

Co.  190  Fed.  394;  Ingle  v.  Southern  Pedersen   case   and   cannot   now   be 

Ry.  Co.  (N.  C.)  83  S.  E.  744.  regarded    as    sound.       Pedersen     v. 

The  case  of  Pierson  v.  New  York,  Delaware,  L.  &  W.  R.  Co.  229  U.  S. 

etc.R.Co.  83N.J.  L.661;85Atl.233,  146;  33  Sup.  Ct.  648;  57  L.  Ed.  1125, 

goes  a  step  farther  and  holds  that  reversing  192  Fed.  537;  117  C.  C.  A. 

an   employee   engaged   in   unloading  33,  which  affirmed  184  Fed.  737. 
rails  that  were  to  be  used  in  repairing 


g4  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

pairing  a  switch  in  the  yards  of  an  interstate  railroad  by  a 
local  train  running  between  two  points  within  the  state,  and 
it  was  held  that  the  company  was  liable  under  the  statute. 
The  repair  of  tlie  switch  was  held  to  be  interstate  business, 
because  the  switch  was  used  indifferently''  in  both  kinds  of 
commerce.  The  court  held  that  it  was  no  matter  of  concern 
whether  or  not  the  train  that  struck  him  was  at  the  time 
engaged  in  interstate  commerce,  giving  as  a  reason:  ''It  is 
true  that  the  act  is  applicable  to  carriers  only  'while  en- 
gaged' in  interstate  commerce,  but  that  includes  their 
activity  w^hen  they  are  engaging  in  such  commerce  by  their 
own  employees.  In  short,  if  the  employee  was  engaged  in 
such  commerce,  so  was  the  road,  for  the  road  w^as  the  master 
and  the  servant's  act  its  act.  The  statute  does  not  say  that 
the  injury  must  arise  from  an  act  itself  done  in  interstate 
commerce,  nor  can  I  see  any  reason  for  such  an  implied 
construction. ' '  ^''' 


"Colasurdo  v.  Central  R.  R.  of  Where  a  switchman  just  prior  to 
New  Jersey,   180  Fed.   832.     Where  his  death  had  been  handling  cars  con- 
an  employee  was  struck  by  an  intra-  taining    both    interstate    and    intra- 
state car  on  a  track  used  for  inter-  state   freight,   it   v-^as   held   that   the 
state  trains,  while  working  on  a  switch  jury  was  authorized  to  find  that  he 
mechanism  which  he  had  just  oiled,  was    employed    in    interstate    com- 
it  was  held  that  he  was  not  within  merce.     Pittsburg,   C.   C.   &   St.   L. 
the  Federal  Act.     Granger  v.  Penn-  Ry.  Co.  v.  Glinn,  219  Fed.  148. 
sylvania  R.  Co.  84  N.  J.  L.  338;  86 
Atl.  2&4:  Illinois  Central  R.  Co.  v. 
Rogers,  221  Fed.  52. 


TO    WHAT   EMPLOYEES   STATUTE    APPLIES.  85 

§  54.  When  an  employee  enters  on  his  work  or  is  entitled 
to  the  protection  of  the  statute. — A  case  arose  in  Montana 
that  is  instructive  on  the  question  when  a  workman  is  en- 
gaged in  the  service  of  a  railway  company  and  consequently 
when  he  was  entitled  to  the  protection  of  the  Federal  statute 
extending  to  interstate  employees.  One  Moyse  was  a  con- 
ductor on  the  railroad  of  the  defendant.  He  brought  his 
train  to  a  freight  yard,  and  having  registered  his  arrival, 
in  the  evening  of  the  day  of  his  arrival,  he  was  noti- 
fied that  he  would  not  be  required  to  go  on  duty 
again  until  the  morning  of  the  second  day  thereafter. 
He,  with  the  brakeman  of  his  train,  spent  the  day  in  the 
city  v/^here  the  yard  was  situated,  returning  at  night  to  the 
freight  yard  to  sleep  in  the  caboose,  as  was  the  fixed  custom 
of  the  employees  of  the  company.  The  caboose  was  placed 
on  a  spur  track  ending  at  an  excavation,  with  no  protection 
to  prevent  its  running  into  it.  There  was  a  slope  towards 
the  excavation,  but  with  the  brakes  set,  barring  accidents, 
it  was  considered  reasonably  safe  to  occupy  the  caboose 
for  sleeping  purposes.  After  the  men  had  returned,  the  yard 
crew  ran  other  cars  upon  the  spur  on  which  the  caboose 
stood  and  left  them  standing,  apparently  held  securely  by 
their  own  brakes.  During  their  brief  absence  these  cars 
and  the  caboose  disappeared,  having  been  released  in  some 
manner  and  running  together  into  the  excavation.  It  was 
contended  that  the  conductor  who  was  asleep  in  the  caboose, 
when  it  was  thrust  into  this  excavation,  and  who  was  in- 
jured, could  not  be  regarded  as,  at  that  time,  in  the  service 
of  the  defendant  railroad,  but  the  court  held  that  he  was, 
saying : 


86  FEDERAL   EMPLOYERS*    LIABILITY   ACT. 

''The  complaint  is  framed  upon  the  theory  that  the 
defendant  company  is  liable  to  the  plaintiff,  as  one  of  its 
employees,  for  injuries  received  while  engaged  in  the  dis- 
charge of  his  duties,  through  the  negligence  of  other  em- 
ployees, and  that  the  other  defendants  are  liable  because 
they  were  personally  guilty  of  the  acts  of  negligence  which 
caused  the  injury.  It  declares  upon  the  statute  which 
abolishes  the  fellow-servant  rule.  (Rev.  Codes,  sec.  5251.) 
The  acts  charged  as  negligence  are  the  handling  of  the  cars 
by  the  yard  crew  in  making  up  the  train  in  such  mann&v 
as  to  permit  them  to  escape  and  collide  with  the  'caboose, 
driving  it  into  the  excavation,  and  the  omission  by  de- 
fendants to  provide  some  device,  at  the  brink  of  the  excava- 
tion, to  prevent  the  caboose  from  being  precipitated  therein, 
if  from  any  cause  it  escaped.  The  first  contention  made  by 
the  counsel  is  that  the  evidence  is  insufficient  to  justify  the 
verdict,  for  that  it  appears  that  at  the  time  the  plaintiff 
was  injured  he  was  not  engaged  actively  in  the  discharge 
of  duties  for  which  he  was  employed  by  the  company,  but 
was  a  mere  licensee  upon  its  property,  to  whom  it  and  its 
employees  owed  no  duty  other  than  to  refrain  from  doing 
him  a  willful  or  wanton  injury ;  and  hence  that  no  liability 
can  be  predicated  upon  the  statute.  In  support  of  this  con- 
tention counsel  argue  that,  while  one  is  in  the  employ  of 
another  under  a  contract,  he  is,  in  a  popular  sense,  an  em- 
ployee during  the  entire  period  covered  by  the  contract; 
yet  the  rights  and  duties  incident  to  the  relation  of  master 
and  servant,  in  a  legal  sense,  do  not  subsist,  except  during 
the  time  which,  under  his  contract,  he  must  actively  devote 
to  the  duties  of  his  employment.  To  make  the  statement 
in  another  way :  Unless  the  servant  is  at  a  particular  time 
under  the  control  of  the  master,  giving  his  time  and  atten- 
tion to  the  particular  duties  he  is  employed  to  do,  he  is  pro 
hac  vice  a  stranger  to  whom  the  master,  as  such,  owes  no 
duty  whatever,  except  such  as  he  must  observe  toward  any 
other  stranger  under  the  social  compact.  While  the  statute 
has  to  do  exclusively  with  those  persons  who  sustain  toward 


TO    WHAT    EMPLOYEES   STATUTE   APPLIES.  87 

each  other  the  relation  of  master  and  servant,  it  does  not 
undertake   to    define   who   those    persons   are,    but   merely 
imposes  certain  rights  and  liabilities  upon  them,  leaving  it 
to  the  courts  to  determine  when  persons  have  assumed  the 
relation.     The  facts  and  circumstances  which  appear  from 
the  statement  of  the  evidence  before  us  furnish  support  for 
the  inference  that,  during  the  entire  time  when  the  plaintiff 
was  away  from  his  home  terminal,   he  was,  except  when 
notified  that  his  services  were  not  wanted,  subject  to  be 
called  on  duty.    He  was  required  to  be  within  call,  and,  as 
he  understood  the  rules,  was  subject  to  discipline  if  he  was 
not.    It  is  also  a  fair  inference  that  though  he  was  not  under 
his  contract  required  to  occupy  the  caboose  at  night,  he 
was  nevertheless  expected  to  do  so,  and  not  only  this,  but 
that  he  had  a  right  to  do  so,  because  it  was  under  all  the  cir- 
cumstances a  su'bstantial  privilege  accorded  to  him  under 
the  contract,  which  the  company  was  not  at  liberty  to  with- 
draw at  will.     If  these  inferences  are  permissible,  and  we 
think  they  are,  then  the  conclusion  seems  inevitable  that  he 
was  in  the  caboose  in  the  course  of  his  employment,  and  that 
the  mem'bers  of  the  yard  crew  were  his  fellow-servants,  for 
whose  negligence  the  "company  is  lia'ble  under  the  statute." 
"The  conclusion  we  have  reached,  that  the  plaintiff  was  in 
the  caboose  for  the  purpose   of  being  within  call  by  the 
defendant  company  to  go  on  duty,  and  was  therefore  in  the 
discharge  of  his  duties,  involves  the  conclusion,  also,  that 
he  was  not  there  as  a  mere  licensee,  and  that  the  rule  of 
liability  declared  by  the  statute  applies  to  the  case  made  by 
the  evidence.    It  is  not  at  all  conclusive  that  the  pay  of  the 
plaintiff  ceased  when  he  registered  on  his  arrival  at  Butte 
[the  city  where  the  accident  happened] .    In  the  light  of  the 
evidence,  under  the  contract  of  employment  it  was  within 
the  contemplation  of  both  parties  that  he  should  hold  him- 
self subject  to  the  order  of  the  company  after  his  pay  had 
ceased;  and  it  seems  clear  that  a  contract  including  a  stipu- 
lation of  this  kind,  express  or  implied,  is  not  open  to  any 
legal    objection.     Under  the    circumstances    disclosed,    the 


gg  FEDERAL,   EMPLOYERS'    LIABILITY   ACT. 

obligation  was  upon  the  company  to  use  ordinary  care  to 
provide  a  reasonably  safe  place  for  the  use  of  plaintiff,  and 
to  maintain  it  in  that  condition.  "^^  So  where  an  employee 
was  engaged  in  relaying  rails  on  the  main  track,  forming 
one  of  a  repairing  crew,  was  injured  while  asleep  at  night 
in  a  shanty  car  in  a  train  on  a  side  track,  a  car  provided  by 
the  railway  company  for  the  crew,  it  was  held  that  he  came 
within  the  Federal  Act.^^* 

§  55.    When  employee  enters  on  interstate  work.— It  is 

very  difficult  to  lay  down  any  rule  that  will  be  definite 
enough  to  afford  any  aid  in  determining  just  when  an 
employee  begins  work  that  is  covered  by  the  statute.  This 
may  or  may  not  involve  the  question  just  when  the  relation 
of  master  and  servant  begins ;  but  usually  a  determination 
of  that  point  of  time  will  be  of  assistance  in  this  connec- 
tion. Take  the  case  of  an  engineer  whose  run  is  from  one 
state  to  another,  and  who  is  injured  by  a  fellow  servant 
before  he  has  mounted  his  engine  or  even  reached  it.  Can 
the  circumstances  be  such  that  he  comes  within  the  provi- 
sions of  this  statute?  One  court  has  in  a  measure  answered 
this  question.  "When  Tucker  was  killed,"  said  the  court, 
"he  was  upon  the  premises  of  the  defendant  in  response  to 
its  call,  to  assume  the  duties  he  had  been  engaged  by  the 
defendant  to  assume,  and  for  their  mutual  interest  and 
advantage.  Can  it  be  that  under  such  circumstances  the 
relation  which  the  decedent  sustained  to  the  defendant  was 
that  of  a  mere  stranger?  Is  it  possible  that  the  Act  under 
consideration  warrants  a  distinction  so  fine  as  to  permit  a 
master  to  escape  liability  for  negligence  resulting  in  the 
inquiry  of  one  hired  to  perform  servi-ce,  because  the  injury 
occurs  before  the  service  is  actually  undertaken,  notwith- 
standing that  at  the  time  of  the  injurj^  the  servant  is  prop- 
erly and  necessarily  upon  the  premises  of  the  master  for  the 
sole  purpose  of  his  employment?  We  think  not.  Such  a 
rule,  in  our  view,  would  bo  as  technical  and  artificial  as  it 
would  be  unjust.  We  think  the  ])etter  rule,  ihe  one  founded 
in  reason  and  supported  liy  authority,  is  that  the  relation 
of  master  and  servant,  in  so  far  as  the  obligation  of  the 
master  to  protect  his  servant  is  concerned,  commences  when 

isMoysc  V.  NortlKirn  i'acilic  Uy.    Co.  41   Mont.   272;    108  Titc.   1062. 
"»*  Sanders  v.  Charleston  &  W.  C.  Ry.  Co.  97  S.  C.  50;  81  S.  E.  283. 


TO   WHAT   EMPLOYEES    STATUTE    APPLIES.  8iJ 

the  servant,  in  piirsnamce  of  hi-s  contract  with  the  master, 
is  rightfully  and  necessarily  upon  the  premises  of  the  master. 
The  servant  in  such  situation  is  not  a  mere  trespasser  nor  a 
mere  licensee.  He  is  there  because  of  his  employment,  and 
we  see  no  reason  why  the  master  does  not  then  owe  him  as 
much  protection  as  it  does  the  moment  he  enters  upon  the 
actual  performance  of  his  task.  *  *  *  In  Packet  Company 
V.  McCue,^^  a  bystander  was  hired  on  a  wharf  to  assist  in 
loading  a  boat  which  was  soon  to  sail.  This  man  had  been 
occasionally  employed  in  such  work.  His  services  occupied 
about  two  and  one-half  hours,  when  he  was  directed  to  go 
to  'the  office,'  which  was  on  the  boat,  and  get  his  pay.  This 
he  did  and  then  attempted  to  go  ashore.  While  on  the  gang- 
plank the  plank  was  recklessly  pulled  from  under  his  feet, 
and  he  was  thrown  against  the  dock,  receiving  injuries  from 
which  he  died.  Owing  to  the  somewhat  peculiar  nature  of 
the  ease  it  was  held  that  it  was  for  the  jury  to  say,  although 
the  facts  were  undisputed,  whether  the  relationship  of 
master  and  servant  existed  until  the  man  got  completely 
ashore.  Tke  >concluding  sentence  of  the  opinion  of  Mr. 
Justice  Davis  was  as  follows:  'The  defense  at  best  was  a 
narrow  one  and,  in  our  view,  more  technical  than  just.'  In 
Ewald  V.  Chicago  &  Northwestern  Railroad  Company,^'^  it 
was  held  that  an  engine  wiper  employed  in  the  defendant's 
roundhouse,  while  going  to  his  work  along  a  pathway  cross- 
ing the  defendant's  yard  and  tracks  was  an  employee  of 
the  defendant,  hence  could  not  recover  for  injury  resulting 
from  the  negligence  of  a  fellow-servant  on  the  freight  train 
causing  the  injury.  The  court  in  its  opinion  said:  'The 
peculiar  facts  of  this  case  which  make  him  such,  appear  to 
involve  precisely  the  same  principles  as  that  class  of  cases 
where  the  plaintiff  was  being  carried  on  his  way  from  and 
to  his  place  of  labor  by  the  railroad  company,  by  consent, 
custom,  or  contract,  and  was  injured  by  the  negligence  of 
other  employees  of  the  company.  This  carriage  of  the  plain- 
tiff was  the  means,  facility,  and  advantage  to  which  he  was 

19  17  Wall.  508;  21  L.  Ed.  705.  20  70  Wis.  420;  36  N.  W.  12,  591. 


90  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

entitled  by  reason  of  his  being  an  employee  or  servant, 
which  entered  into  and  became  a  part  of  his  contract  of 
employment  or  were  incidental  and  necessary  to  jt.  *  *  * 
Again,  it  may  be  said  that  the  plaintiff  was  still  an  employee, 
because  he  was  attempting  to  use  the  pathway  between  the 
car  as  the  only  customary  and  convenient  means  of  access 
to  and  exit  from  the  roundhouse  which  the  company  had 
provided,  and  was  under  obligation  to  keep  open  and  safe 
for  him  and  his  fellow-workmen  when  he  was  injured.'  In 
Boldt  V.  Nciv  York  Central  Railroad  Company, ^'^  plaintiff 
was  injured  while  walking  on  a  new  track  from  his  house 
to  his  Avork.  The  court  said:  'But  he  was  in  defendant's 
employment  and  doing  that  which  was  essential  to  enable 
him  to  discharge  his  particular  duty,  viz.,  going  to  the  spot 
where  it  was  to  be  performed,  and  he  was,  moreover,  going 
on  the  track  where,  except  as  the  servant  of  the  company, 
he  had  no  right  to  be.  He  was  there  as  the  employee  of  the 
company,  and  because  he  was  suoh  employee.'  But  it  is 
urged  that  Fletcher  v.  Baltimore  &  Potomac  Railroad  Com- 
pany,^- sustains  the  view  of  the  defendant  on  this  question. 
"We  do  not  so  read  the  case.  There  the  plaintiff  at  the  time 
of  the  accident  had  ended  his  work  for  the  day,  and  had 
left  the  workshop  and  grounds  of  the  defendant,  and  was 
moving  along  a  public  highway  in  the  city  with  the  same 
rights  as  any  other  citizen  would  have,  when  he  was  struck 
by  the  rebounding  of  a  stick  of  timber  thrown  from  a  train 
of  the  defendant  by  one  of  its  employees,  a  practice  per- 
mitted by  the  company,  and  injured.  It  was  held  that  'the 
liability  of  the  defendant  to  the  plaintiff  for  the  act  in 
question  is  not  to  be  gauged  by  the  law  applicable  to  fellow- 
servants,  where  the  negligence  of  one  fellow-servant  'by 
which  another  is  injured  imposes  no  liability  upon  the 
common  employees.'  Manifestly  that  case  and  this  are  ma- 
terially different.  There  the  plaintiff  was  not  on  the  prem- 
ises of  the  defendant,  but  upon  a  public  highway  where  his 

21  18  N.  Y.  432.  35:    42   L.    Ed.    411;    reversing   6 

22  1«8    U.    S.    135;    18    Sup.    Ct.      App.  D.  C.  3S5. 


TO  WHAT   EMPLOYEES   STATUTE  APPLIES.  Q\ 

relations  to  the  defendant  were  precisely  those  of  the  general 
public  to  it.  Its  relation  to  him,  therefore,  in  such  a  situa- 
tion was  precisely  what  it  would  have  been  to  any  other 
pedestrian.  Here,  however,  the  plaintiff  was  upon  the  prem- 
ises of  the  defendant,  upon  its  invitation,  in  the  line  of  his 
employment,  and  solely  because  of  such  employment.  We 
hold,  therefore,  that  at  the  time  of  his  death,  Tucker  was 
within  the  protection  of  said  [Federal]  Act."-^  But  where 
a  fireman  whose  run  was  wholly  within  the  state,  having 
oiled  and  prepared  his  locomotive,  which  was  not  then  at- 
tached to  a  train  of  cars,  was  killed  while  crossing  the  tracks 
to  his  boarding-house  for  a  personal  purpose ;  and  his  loco- 
motive was  to  have  hauled  some  interstate  freight,  but  the 
road  upon  which  it  was  run  was  not  an  interstate  carrier, 
though  the  lessee  was  engaged  in  such  commerce,  it  was  held 
by  the  state  court  that  the  Federal  statute  did  not  apply  to 
him,  because  at  the  time  of  his  injury  he  was  not  engaged  in 
interstate  commerce,-^*  but  the  Federal  Supreme  Court  re- 
versed the  case,  holding  that  he  was.-^^ 

§  56.  Injured  servant  employed  in  both  interstate  and 
intrastate  commerce. — Few  servants  of  an  interstate  railroad 
are  employed  wholly  in  intrastate  commerce,  and  so  few 
are  employed  wholly  in  interstate  commerce.  The  fact  is 
that  all  servants  connected  with  the  traffic  operations  of 
such  a  railroad  are  engaged  both  in  inter  and  intrastate  com- 
merce during  their  employment.  If  such  a  servant  be  in- 
jured while  engaged  in  intrastate  commerce,  then  he  cannot 
invoke  the  aid  of  this  statute  to  enable  him  to  recover  dam- 
ages ;  but  if  he  be  injured  while  engaged  in  interstate  com- 

^^  Philadelphia,   B.   &   W.   R.   Co.  sells  a  ticket  to  a  traveler  going  beyond 

V.  Tucker,  35  App.  D.  C.  123;  Lam-  the  state,  the  car  cleaner  who  cleans 

phere  v.  Oregon  R.  &  N.  Co.  196  Fed.  the  car  he  is  to  travel  in,  the  man  who 

337;  116  C.  C.  A.  156;  reversing  193  loads    the    engine    tender   with    coal 

Fed.  248.  which  is  to  pull  him,  and  the  gate- 

^^*  Zachary  v.  North  Carolina  R.  keeper  who  examines  his  ticket  and 

Co.  156  N.  C.  496;  72  S.  E.  858.    "If  passes  him  into  the  car,  are  all  em- 

the     contention     of     the     defendant  ployed     in     interstate     commerce." 

[plaintiff]    can   be   maintained,    then  Neil  v.  Idaho  &  W.  N.   R.  Co.   23 

it  follows  that  all  employees  of  rail-  Idaho  74;  125  Pac.  331. 

ways  that  do  an  interstate  business  -"  232  U.  S.  248;  34  Sup.  Ct.  305; 

are  necessarily  employed  in  interstate  57  L.  Ed.  591. 
commerce.      The    ticket   seller,    who 


92  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 

meree,  he  may.  The  fact  that  he  is  sometimes  engaged  in 
intrastate  commerce  in  no  way  prevents  his  resorting  to 
the  statute  when  injured  while  engaged  in  interstate  com- 
merce. "The  distinction  should  be  noted  that  the  act  will 
not  necessarily  apply  to  the  same  persons  in  all  details  of 
his  employment.  One  man  might  have  duties  including  both 
interstate  and  intrastate  commerce,  and  he  would  not  be 
subject  to  the  act  while  engaged  in  one  and  not  the  other."  ^* 
"Any"  employee  "while"  engaged  in  interstate  commerce 
is  embraced  within  the  terms  of  the  statute.  He  can  invoke 
the  sta'tutB  for  an  injury  received  "while"  he  is  engaged 
in  interstate  commerce.  It  is  not  enough  for  him  to  show 
that  he  was  engaged  generally  by  an  interstate  railroad 
company. ^'^  He  must  go  further  and  show  that  he  received 
his  injury  "while"  engaged  in  interstate  commerce  for  the 
company.  Thus  an  engineer  hauling  an  intrastate  train 
loaded  entirely  with  intrastate  traffic  is  not  within  the  terms 
of  the  statute  if  he  be  injured,  for  he  is  not  injured  "while" 
engaged  in  interstate  commerce,  though  he  would  be  if 
there  was  any  interstate  traffic  aboard  the  train.  In  one  case 
the  plaintiff  was  a  brakeman  on  a  train  loaded  both  with 
interstate  and  intrastate  traffic.  The  train  as  such  was 
made  up  to  run  from  one  point  within  a  state  to  another 
within  it.  On  reaching  a  station  midway  a  car  loaded 
wholly  with  intrastate  commerce  was  to  be  left.  That 
part  of  the  train  back  of  it  was  cut  loose;  and  it  was 
then  hauled  up  the  track  past  a  switch  and  then  that  part 
of  the  train  in  front  of  it  was  backed  rapidly  so  as  to  make 
a  "running  switch."  In  so  doing  he  fell  off  the  rapidly 
moving  car  and  was  injured.  It  was  held  that  he  was  in- 
jured while  engaged  in  intrastate  commerce  and  not  inter- 
state commerce.^^* 


**  Colasurdo  v.   Central   R.   R.   of  26*  Van  Brimmer  v.  Texas  &  P.  Ry. 

N.  J.  180  Fed.  832;  Zikos  v.  Oregon  Co.  190  Fed.  391;  Atlantic  Coast  Line 

R.  &  N.  Co.  179  Fed.  893;  Ilorton  v.  R.   Co.   v.   Jones,   9  Ala.  App.   499; 

Seaboard  Air  Line  R.  Co.  157  N.  C.  (13  So.  093;  Myers  v.  Norfolk  &  W. 

146;  72  S.  E.  958.  Ry.  Co.  162  N.  C.  343;  78  S.  E.  280. 

"Tsmura  v.  Great  Northern  Ry.  New  York  Cent.  &  H.  R.  R.  Co.  v. 

Co.    58    Wash.    310;    108    Pac.    774;  Carr,  35  Sup.  Ct.  780,  affirming  157 

Cannole  v.  Norfolk  &  W.  Ry.  Co.  App.  Div.  941;  142  N.  Y.  Supp.  1111. 
216  Fed.  823. 


TO    WHAT    EMPLOYEES    STATUTE    APPLIES.  93 

§  57.  Employees  covered  by  statute. — It  is  beyond  de- 
bate that  the  statute  embraces  all  engineers,  firemen,  brake- 
men  and  conductors  employed  at  the  time  of  their  injuries 
upon  an  interstate  train.  In  one  case  it  is  said  that  the 
statute  covers  a  telegraph  operator  dispatching  trains,^** 
and  in  that  same  case  it  is  said  that  Congress  meant  to  in- 
clude everybody  whom  it  could  include.  As  we  have  seen, 
it  has  been  held  that  a  section  hand  or  track  repairer  on 
an  interstate  railroad  track,  or  over  which  interstate  traffic 
passes,  is  embraced  within  the  statute,-^  although  that  deci- 
sion has  been  declared  unsound.-^  It  includes  a  car  re- 
pairer in  a  switching  yard  repairing  interstate  cars.^^  Since 
ears  upon  the  terminal  tracks  of  interstate  railroads  are 
regarded  as  within  the  Safety  Appliance  Act  of  1893,  it  is 
a  legitimate  conclusion  that  all  employees  handling  therein 
cars  upon  such  tracks  used  as  interstate  cars  are  embraced 
by  this  statute  of  1908.^''  No  doubt,  it  is  believed,  but  what 
a  freight  handler  of  interstate  freight  in  loading  and  un- 
loading cars  in  which  it  is  to  be  or  has  been  carried  is 
covered  by  the  terms  of  the  statute.  So  are  mechanics  or 
repairmen,  while  engaged  upon  interstate  cars,  engines  or 
other  interstate  instrumentalities,  and  even  while  passing 
over  the  railroad  for  the  purpose  of  repairing  such  cars, 
engines  or  instrumentalities.  Likewise  the  members  of  an 
emergency  crew  while  at  work  upon  any  interstate  train 
or  any  railroad  track  that  is  a  highwaj''  of  interstate  com- 
merce. Linemen  fall  within  its  terms.  Not  only  are  track 
repairers  within  its  terms,  but  also  those  who  construct  or 
repair  the  signal  wires  used  by  an  interstate  railroad,  even 
though  they  be  used  without  discrimination  between  the 

The   statute    applies    to    the    em-  that  he  came  within  the  Federal  Act. 
ployees  of  a  railroad   company  em-  Erie   R.   Co.   v.   Kennedy,   191   Fed. 
ployed  on  a  ferry  boat,  owned  and  332;  112  C.  C.  A.  76. 
operated  by  the  company  in  inter-  -^  Colasurdo  v.   Central   R.   R.  of 
state   commerce   in   connection   with  New  Jersey,   180  Fed.  832.     Signal- 
its  railroad,  and  supersedes  a  state  man,  Cincinnati,  N.  O.  &  T.  P.  Ry. 
statute  on  the  subject.    The  Passaic,  Co.  v.  Bonham  (Tenn.)  171  S.  W.  79. 
190   Fed.   644.      But   see   Jenson   v.  27  ggc.  48  and  Sec.  49. 
Southern    P.    Co.    215    N.    Y.    514;  ^s  Sec.  51. 
109  N.  E.  600.  "  Sec.  50. 

Where   an   employee   was   injured  ^°  See  Johnson  v.  Great  Northern 

while  unloading  coal  through  a  device  Ry.    Co.    178    Fed.    643;     Chicago 

of  an  unloading  machine,  being  ship-  Junction     Ry.     Co.     v.    King,     109 

ped  from  one  state  to  another  distant  Fed.  372. 
one,  onto  a  vessel,  it  was  assumed 


94  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

local  or  interstate  character  of  its  traffic.  In  the  case  of 
clerks  in  the  accounting  department,  although  they  be  en- 
gaged in  keeping  the  accounts  of  interstate  shipments,  it  is 
difficult  to  see  how  they  are  engaged  in  interstate  commerce 
as  used  in  this  statute ;  for  their  work  is  not  of  a  hazardous 
character,  such  as  it  seems  that  Congress  had  in  mind  when 
it  enacted  this  statute.  And  this  is  also  true  of  ticket 
sellers;  but  not  station  agents  when  handling  interstate 
traffic. 

§  58.  Other  employments  incidentally  connected  with  in- 
terstate transportation. — In  the  following  instances  it  has 
been  held  that  the  employee  at  the  time  of  his  injury  was 
so  engaged  in  interstate  commerce  as  entitled  him  to  claim 
the  benefits  of  the  Federal  Liability  Act :  A  seal  clerk  in  a 
division  yard  inspecting  and  listing  seals  on  an  interstate 
train,  preparatory  to  the  distribution  of  its  cars  to  other 
trains.^  -^  employee  oiling  an  engine  which  was  to  go  on 
an  interstate  trip  and  which  was  hauling  two  empty  freight 
cars  that  had  come  from  without  the  state.-  An  engineer 
operating  an  engine  on  a  trial  trip  after  it  had  come  from 
the  repair  shop,  preparatory  to  an  interstate  journey.^  A 
section  hand  sweeping  snow  from  switches  used  by  trains 

^  St.  Louis,  S.  F.  &  T.  R.  Co.  v.  the  train  be  broken  up  and  the  cars 
Scale,  229  U.  S.  156;  33  Sup.  Ct.  651;  taken  to  the  appropriate  tracks  for 
57  L.  Ed.  1129,  reversing  (Tex.  Civ.  making  up  outgoing  trains,  or  for 
App.)  148  S.  W.  1099.  The  court  unloading  or  delivering  freight,  and 
eaid:  "In  our  opinion  the  evidence  this  was  as  much  a  part  of  the  inter- 
does  not  admit  of  any  other  view  state  cars"  protection  as  was  the 
than  that  the  case  made  by  it  was  movement  acrcss  the  state  line." 
within  the  Federal  Statute.  The  "Spotting  cars."  Montgomery  v. 
train  from  Oklahoma  was  not  only  an  Southern  Pac.  Co.  64  Ore.  597;  131 
interstate  train,  but  was  one  engaged  Pac.  507;  Great  Northern  Ry.  Co.  v. 
in  the  movement  of  intenstate  freight,  Alustell,  222  Fed.  879;  Southern  Ry. 
and  the  duty  which  the  deceased  Co.  v.  Puckett  (Ga.  App.)  85  S.  E. 
was  performing  was  connected  with  809;  Pittsburgh,  C.  C.  &  St.  L.  Ry. 
that  movement,  not  directly  or  re-  <-o-  v.  Farmers'  A.  S.  Co.  (Ind.)  108 
motely,  but  directly  and  immediately.      ^-  E.  108. 

The    interstate    transportation    was  *  North  Carolina  R.  Co.  v.  Zachary, 

not  ended  merely  because  that  yard  232  U.  S.  248;  34  Sup.  Ct.  305;  58 
waa   a   terminal   for  that   train,   nor      L.  Ed.  571. 

even   if  the  cars  were  not  going  to  The    engine    had    not    yet    been 

points  beyond.  Wlicther  they  were  coupled  to  the  train,  but  his  act  was 
going  further  or  were  to  stop  at  "performed  as  a  part  of  interstate 
that  station,  it  still  was  necessary  that      commerce,     and     the     circumstance 

that  the  interstate  freight  cars  had 

not  as  yet  been  coupled  up  is  legally 

insignificant." 

3  Llovd  V.   Southern   Ry.  Co.   166 

N.  C.  24;  81  S.  E.  1003. 


TO  WHAT  EMPLOYEES  STATUTE  APPLIES.  95 

engaged  in  interstate  and  intrastate  commerce.*  A  brake- 
man  engaged  in  switching  cars  destined  to  another  state, 
even  though  the  train  on  which  he  was  engaged  made  only 
an  interstate  journey.^  A  brakeman  employed  on  a  train 
made  up  largely  of  interstate  cars  which  at  the  time  of  the 
injury  was  engaged  in  switching  an  intrastate  ear,  prepara- 
tory to  putting  it  into  the  train."  A  switchman  in  a  yard 
making  up  an  interstate  trainj  A  switchman  injured  by  a 
freight  car  diverted  from  its  route  fourteen  miles  to  a  point 
within  the  state  for  necessary  repairs.^  A  switching  crew 
engaged  in  switching  and  spotting  cars  loaded  and  to  be 
loaded  with  interstate  commodities,  and  in  hauling  cars  up 
the  mountains  to  a  station  from  which  they  conveniently 
could  be  taken  by  a  regular  interstate  train  passing  over  an 
interstate  railroad.^  Switching  interstate  coal  cars  and 
dumping  thera.^*'  A  switchman  assigned  to  a  switch  loco- 
motive killed  on  his  way  while  crossing  defendant's  tracks.'^ 
An  interstate  engineer  switching  his  ears  at  the  end  of  his 
run.*-  A  fireman  engaged  in  shifting  intrastate  cars  to  be 
piTt  in  a  train  made  up  partly  of  interstate  cars.*^  A  section 
hand  asleep  at  night  in  a  car  on  a  side  track  provided  by  the 
railroad  company  for  his  use.^*    An  engineer  at  station  for 

«  Hardwick  V.  Wabash  R.  Co.  (Mo.)  «  St.    Louis    &    S.    F.    R.    Co.    v. 

168  S.  W.  .328.  Conarty,  106  Ark.  421;  155  S.  W.  93. 

^Nashville,   C.    &    St.   L.   R.  Co.  » Montgomery    v.    Southern    Pac. 

V.  Banks,  156  Ky.  609;  161  S.  W.  554;  Co.  64  Ore.  507;  131  Pac.  507. 

Rich  V.  St.  Louis  &  S.  F.  R.  Co.  166  '°  Barlow  v.  Lehigh  Valley  R.  Co. 

Mo.    App.    379;    148    S.    W.    1011.  158  App.  Div.  768;  143  N.  Y.  Supp. 

Contra,    Farrell   v.    Pennsylvania    R.  1053.  The  coal  was  for  the  defendant's 

Co.    (N.   J.)   93   Atl.    682,   following  own  engines,  and  was  dumped  into 

Erie   R.   Co.   V.   United   States,    197  bunkers  until  there  was  use  for  it  on 

Fed.  287;  116  C.  C.  A.  649.  its  engines.     Kamboris  v.  Oregon  & 

«Thornbro  v.  Kansas  Citv,  M.  &  Wash.    R.    &    Nav.    Co.    (Ore.)    146 

O.  Ry.  Co.  91  Kan.  684;  139  Pac.  410,  Pac.  1097;  Southern  Ry.  Co.  v.  Peters 

or  rehearing  92  Kan.  681;  142  Pac.  (Ala.)  69  So.  611. 

250;  Sears  v.  Atlantic  C.  L.  R.  Co.  "  Knowles  v.  New  York,  N.  H.  & 

(N.  C.)  86  S.  E.  176.  H.  R.  Co.  (App.  Div.)  150  N.  Y.  Supp. 

'  Louisville  &  N.  R.  Co.  v.  Lank-  99. 

ford,    211     Fed.    321;    Bramlett    v.  '^  Kansas  Citv,  M.  &  O.  Ry.  Co.  v. 

Southern  Rv.  Co.  98  S.  C.  319;  82  Pope  (Tex.  Civ.  App.)  152  S.  W.  185. 

S.  E.  501;  St.  Louis,  S.  W.  Ry.  Co.  v.  "  Southern  Ry.  Co.  v.  Jacobs  (Va.) 

Andersen  (Ark.)  173  S.  W.  834;  Rich  §1    fe-    ^-    99;    Pennsylvania    Co.    v. 

v.  St.  Louis  &  S.  F.  R.  Co.  166  Mo.  Sheely,  221  Fed.  901. 

App.  379;  148  S.  W.  1011;  Southern  '*  Sanders  v.  Charleston  &  W.  C. 

Ry.  Co.  V.  Smith,  205  Fed.  360;  123  %•  Co.  97  S.  C.  50;  81  S.  E.  283. 
C.  C.  A.  488. 


96  FEDERAL,   EMPLOYERS'    LIABILITY    ACT. 

pumping  water  to  be  used  by  engines  engaged  in  interstate 
commerce. ^^  A  member  of  a  switching  crew  unloading  from 
a  car  oil  to  be  used  as  fuel  for  engines  regularly  engaged  in 
interstate  commerce. ^"^  An  employee  assisting  in  the  move- 
ment of  water  or  coal  to  be  consumed  by  engines  used  in 
interstate  commerce. ^^  A  brakeman  getting  ice  to  cool  a 
hot  box  on  an  interstate  train. ^^  A  porter  preparing  ice  for 
a  water  cooler  on  a  car  carrying  interstate  passengers. ^^  An 
employee  engaged  in  loading  tobacco  on  a  car  to  be  trans- 
ported in  interstate  commerce.-"  A  brakeman  on  a  passen- 
ger train  running  from  one  state  to  another.-^  So  a  car 
porter.^-  Servant  cooling  engine  in  an  interstate  train.-^ 
A  brakeman  obeying  his  conductor  who  was  running  the 
train  engine  while  the  engineer  and  fireman  were  eating 
dinner  in  the  caboose,  to  act  as  fireman.-*  Brakeman  help- 
ing to  move  interstate  train.-^  A  student  brakeman  in  inter- 
state commerce.-**  Wheeling  coal  to  that  shop  in  which  other 
employees  were  engaged  in  making  repairs  to  cars  that  had 
been  and  were  to  be  used  in  interstate  commerce.-^  A 
weigher  of  interstate  commerce  cars.-^  A  brakeman  running 
between  points  within  a  state,  his  cars  being  both  intrastate 
and  interstate  injured  in  cutting  out  cars  shipped  from  and 
billed  to  points  within  the  state.-^  A  brakeman  who,  after 
finishing  his  regular  duties,  after  a  run  between  two  state 

*^  Horton     v.    Oregon-Washington  ^"^  Missouri,   K.   &   T.   Ry.   Co.   v. 

R.  &  Nav.  Co.  72  Wash.  503;  130  Bemklcy  (Tex.  Civ.  App.)  153  S.  W. 

Pac.  897;   Knapp  v.  Great  Northern  937. 

Ry.  Co.  (Minn.)  153  N.  W.  848.  "  Armbruster  v.  Chicago,  R.  I.  & 

'«  Montgomery    v.    Southern    Pac.  P.  Ry.  Co.  (Iowa)  147  N.  W.  337. 

Co.  64  Ore.  597;  131  Pac.  507.  ^4  Martin  v.  Atchison,  T.  &  S.  F. 

"  Barker  v.  Kansas  City,  M.  &  O.  Ry.  Co.  (Kan.)  145  Pac.  849. 

Ry.  Co.  88  Kan.  767;  129  Pac.  1151;  «  Vaughan  v.  St.  Louis  &  S.  F.  R. 

43  L.  R.  A.  (N.  S.)  1121;  Kamboris  v.  Co.  177  Mo.  App.  155;  164  S.  W.  144. 

Oregon  &  Wash.  R.  &  Nav.  Co.  (Ore.)  "«  Riof    v.    Great    Northern,     126 

146  Pac.  1097.  Minn.  4.30;  148  N.  W.  309. 

'"  Illinois  Central  R.  Co.  v.  Nelson,  "  Cousins  v.  Illinois  Central  R.  Co. 

203  Fed.  956.  126  Minn.  172;  148  N.  V/.  58,  relying 

"  Freeman    v.    Powell    (Tex.    Civ.  on  Pedersen  v.   Delaware,   L.  &  W. 

App.)    144    S.    W.    1033;    Powell    v.  R.  Co.  229  U.  S.   146;  33  Sup.  Ct. 

Freeman,  105  Tex.  317;  148  S.W.  290.  648;   57   L.   Ed.    1125.      Putting   on 

^°  Illinois  Central  R.  Co.  v.  Porter,  engine  a  barrel  of  oil.     Tonselleto  v. 

207  Fed.  311;  125  C.  C.  A.  55.  N.  Y.  Cent.  &  H.  R.  R.  Co.  (N.  Y.) 

='  Cincinnati,  N.  O.  &  T.  P.  Rv.  Co.  94  Atl.  804. 

y.  Goode.  155Kv.  153;  l.'")9S.  W\695;  «  Wheeling   Terminal    Ry.   Co.   v. 

153  Ky.  247;  154  S.  W.  941.    Or  haul-  Russell,  209  Fed.  795;  126  C.  C.  A. 

ing   empty   freight    cars.     St.    Louis  519. 

S.  W.  Co.  v.  Anderson  (Ark.)  173  ^i.  Carr  v.  New  York  Central  &  H. 
S.  W.  834. 


TO   WHAT  EMPLOYEES  STATUTE  APPLIES. 


97 


points  on  a  train  which  had  some  interstate  cars  on  it,  went 
to  a  nearby  saloon,  and  from  there  started  to  cross  over  a 
train  to  go  to  the  station  to  ascertain  if  the  conductor  had 
any  further  orders  for  him,  who  was  injured  while  crossing 
the  train.^°  A  caretaker  of  interstate  engines  in  a  round- 
house.^^ Employed  in  making  up  a  train  with  interstate 
traffic  aboard  some  of  the  cars."-  Switching  car  placed  on 
side  track  for  repairs  when  loaded  with  interstate  traffic.^^ 
A  train  servant  riding  on  an  empty  train  from  one  state  to 
another.^*  A  boilermaker's  helper  falling  into  an  unguarded 
pit  in  a  shop.^^  An  engineer  inspecting  his  engine.^*'  An 
engineer  while  inspecting  his  engine  under  the  company's 
rules  injured  by  a  roundhouse  engineer  hostler.^"  A  switch 
engineer  switching  interstate  coal  cars  so  they  could  be 
dumped  into  the  company's  coal  bunkers  from  which  inter- 


R.  R.  Co.  77  N.  Y.  Misc.  346;  136 
N.  Y.  Supp.  501.  "Assuming  they 
were  doing  intrastate  commerce  duties 
while  placing  the  two  cars  in  question, 
they  still  remained  all  the  time  in  the 
employ  of  the  defendant,  and  in 
charge  of  the  operation  of  the  inter- 
state commerce  train  from  which  the 
two  cars  in  question  were  taken. 
While  cutting  out  the  cars  in  question 
at  Tonawanda,  they  still  continued 
their  relationship  to  the  rest  of  the 
train  as  interstate  commerce  agents. 
Placing  the  cars  upon  the  siding  was 
but  incidental  to  their  main  employ- 
ment. Any  accident  or  injury  to 
one  or  more  of  the  crew  to  that 
extent  tended  to  unman  the  train 
about  to  proceed  in  interstate  com- 
merce, and  to  disable  one  or  more 
of  such  a  crew  might  impede  and  delay 
the  progress  of  the  train  on  its  way, 
and  effect  its  safety  and  dispatch." 
Affirmed  35  Sup.  Ct.  780,  which  dis- 
tinguishes Illinois  Cent.  R.  Co.  v. 
Behrens,  233  U.  S.  473;  34  Sup.  Ct. 
646;  58  L.  Ed.  1051;  Ann.  Cas.  1914  C, 
163. 

An  almost  identical  case  is  Thorn- 
bro  V.  Kansas  City,  M.  &  O.  Ry.  Co. 
31  Kas.  684;  39  Pac.  410. 

3"  Gaber  v.  Duluth,  S.  S.  &  A.  Ry. 
Co.  (Wis.)  150  N.  W.  489. 

51  Guana  v.  Southern  Pac.  Co.  15 
Ariz.  413;  139  Pac.  782.  No  question 
ever  raised,  however,  on  this  point. 


32  Neil  V.  Idaho  R.  Co.  22  Idaho  74; 
125  Pac.  331.  This  would  be  true 
even  though  the  injury  was  oc- 
casioned by  an  intrastate  car  in  the 
train.  "It  seems  to  us  that  prepara- 
tion was  being  made  to  have  his 
train  leave  Spirit  Lake,  and  that  he 
was  engaged  in  getting  his  train 
ready  for  the  transportation  of  freight 
both  within  the  state  and  beyond  its 
boundaries,  and  that  he  was  engaged 
in  interstate  commerce  within  the 
meaning  of  that  term  as  used  in  said 
act  of  Congress."  See  also  Willever 
V.  Delaware,  L.  &  W.  R.  Co.  (N.  J.) 
94  Atl.  595. 

"Delk  V.  St.  Louis,  etc.,  R.  Co. 
220  U.  S.  580;  55  L.  Ed.  590;  31  Sup. 
Ct.  617. 

5*  Kansas,  etc.,  R.  Co.  v.  Cook, 
100  Ark.  467;  140  S.  W.  579. 

3^  Glenn  v.  Cincinnati,  N.  O.  & 
T.  P.  R.  Co.  157  Ky.  453;  163  S.  W. 
461.  It  is  to  be  noted,  however, 
no  question  of  nonliability  under  the 
Federal  Act  was  discussed  in  the 
opinion. 

36  Lloyd  V.  Southern  Ry.  Co.  166 
N.  C.  24;  81  S.  E.  1003. 

"  Taylor  v.  Southern  Ry.  Co.  (Ind. 
App.)  101  N.  E.  506. 

A  watchman  removing  trespassers 
is  engaged  in  interstate  commerce. 
Smith  v.  Industrial  A.  C.  (Cal.)  147 
Pac.  600. 


98 


FEDERAL   EMPLOYERS'   LIABILITY   ACT. 


state  engines  and  local  engines  got  their  coal.^^  A  switching 
crew  making  up  a  train  of  both  intrastate  and  interstate 
cars,  the  latter  destined  for  another  state.^^  Employee  de- 
taching a  steam  pipe  on  an  interstate  train  to  couple  to  an- 
other in  order  to  continue  the  run.^"  An  engine  wiper  in 
a  roundhouse.*"* 

§  59.  Working'  on  bridge — Repairing  telegraph  lines — 
Installing  block  system. — An  employe  carrying  bolts  to  be 
used  in  repairing  a  railroad  bridge  over  which  interstate 
traffic  is  carried  is  within  the  Federal  Statute  if  injured, 
even  though  injured  by  an  intrastate  train  on  an  intrastate 
track.*^  So  a  laborer  putting  down  guard  rails  on  such  a 
bridge  is  within  the  meaning  of  the  Federal  Act.*^  So  bridge 
carpenters  working  on  such  a  bridge  ;*^  and  a  borer  on  a 
trestle  ;^*  and  an  employee  repairing  a  telegraph  line  f^  or 
installing  along  interstate  commerce  tracks  a  block  system.*® 


^^  Barlow  v.  Lehigh  Valley  E.  Co. 
158  App.  Div.  76S;  143  N.  Y.  Supp. 
1053.  Working  at  coal  chute.  South- 
ern Ry.  Co.  V.  Peters  (Ala.)  69  So. 
611. 

An  employee  cleaning  stencils  used 
to  mark  interstate  cars  is  not  within 
the  provisions  of  the  Act.  Illinois 
Central  R.  Co.  v.  Rogers,  221  Fed. 
52. 

3«  Vandalia  R.  Co.  v.  Holland  (Ind.) 
108  N.  E.  580. 

"  Kansas  City  Southern  Ry.  Co.  v. 
Miller  (Ark.)  175  S.  \V.  1164. 

"•  Cross  V.  Chicago,  B.  &  Q.  R.  Co. 
(Mo.  App.)  177  S.  W.  1127.  Coupling 
private  car  to  train.  Oberlin  v. 
Oregon-W.  R.  &  N.  Co.  (Ore.)  142 
Pac.  554.  Cutting  out  cars.  New 
York  C.  R.  R.  Co.  v.  Carr,  238  U.  S. 
260. 

^'  Pedersen  v.  Delaware,  L.  &  W. 
R.  Co.  229  U.  S.  146;  33  Sup.  Ct.  648; 
57  L.  Ed.  1125,  reversing  197  Fed. 
537;  117  C.  C.  A.  33,  which  affirmed 
184  Fed.  737;  Spinden  v.  Atchison, 
T.  &  S.  F.  Ry.  Co.  (Kas.)  148  Pac. 
747. 

« Norfolk  &  W.  Ry.  Co.  v.  Hol- 
brook,  215  Fed.  687;  Smith  v.  North- 
ern Pac.  Ry.  Co.  79  Wash.  448;  140 
Pac.  685. 

*'  Pedersen  v.  Delaware,  L.  &  W. 
R.  Co.,  Hupra;  Thomson  v.  Columhia 
&  P.  S.  S.  Co.  205  Fed.  203;  Coluriihia 
&.  P.  S.  R.  Co.  v.  Sauter,  223  Fed.  604. 

"  Lfniisvillc  &  N.  R.  Co.  v.  Walker, 
162  Ky.  2(X);  172  Fed.  517;  Camp 
V.  Atlanta  &  C.  A.  L.  Ry.  Co.  (S.  C.) 
84  S.  E.  825. 

"Deal  v.  Coal  &.  Coke  Ry.  Co. 
215  Fed.  285. 


*°  Grow  V.  Oregon  Short  Line  R. 
Co.  44  Utah  160;  138  Pac.  398; 
Saunders  v.  Southern  Ry.  Co.  (N.  C.) 
83  S.  E.  573. 

In  the  Block  System  case  it  was 
said:  "We  think  the  rule  announced 
in  the  Pedersen  case  is  decisive  of  the 
question  here.  If,  as  there  announced, 
an  employee  engaged  in  repairing  a 
car,  engine,  or  track,  or  constructing 
or  repairing  a  switch  or  bridge  along 
a  track  used  in  interstate  commerce  is, 
within  the  meaning  of  the  Act.  em- 
ployed in  such  commerce,  then,  do 
we  think,  was  the  deceased  here  also 
employed  in  such  commerce.  The 
defendant  company  was  engaged  in 
interstate  commerce.  In  carrying 
on  such  commerce  it  had  been,  and 
then  was,  using  its  track  and  line 
of  railway  for  such  purpose  from  Salt 
Lake  to  Huntington.  For  the  better 
conduct  of  such  commerce  and  the 
moving  of  such  traffic,  and  to  pro- 
mote the  safety  of  employees  in 
operating  interstate  trains  and  of 
passengers  transported  from  state  to 
state,  it  was  necessary,  or,  at  least, 
desirable,  to  equip  its  line  of  rail- 
way with  block  signals.  For  that 
purpose  were  they  installed.  They 
are  not  separate  and  apart  from  the 
track,  something  operated  independ- 
ently of  it,  or  independently  of  the 
interstate  commerce  in  which  the 
defendant  was  engaged,  but  are, 
in  a  sense,  a  part  and  parcel  of  the 

A  like  decision.  Saunders  v.  South- 
ern Ry.  Co.  (N.  C.)  83  S.  E.  573. 


TO  WHAT  EMPLOYEES  STATUTE  APPLIES. 


99 


track  itself,  something  attached  to, 
and  operated  in  connection  with,  it 
in  carrying  on  such  commerce.  Now, 
should  it  be  said  than  an  employee 
repairing  a  car  which  had  been,  and 
was  intended  to  be,  used  in  interstate 
commerce  is  employed  in  such  com- 
merce, but  if  he  be  engaged  in  attach- 
ing to  such  car  a  new  appliance,  or 
equipment,  something  not  theretofore 
used  on  such  car,  or  by  the  carrier, 
he  is  not  engaged  in  such  commerce? 
or,  if  the  employee  is  engaged  in 
repairing  a  bridge  along  a  track  used 
in  interstate  commerce,  he  is  en- 
gaged in  such  commerce,  but  if  he, 
along  such  track,  is  engaged  in  put- 
ting in  a  new  bridge  or  conduit  where 
theretofore  there  was  none,  he  is  not 
engaged  in  interstate  commerce? 
or,  if  one  along  such  a  track — one 
used  in  interstate  commerce — is  en- 
gaged in  taking  up  an  old  or  defective 
rail  and  inserting  a  new  one,  he  is 
engaged  in  such  commerce,  but  if  he, 
for  the  better  operation  of  trains 
along  such  a  track  and  to  promote 
the  safety  of  pas.sengers  carried  on  and 
employees  operating  interstate  trains, 
is  engaged  in  attaching  to  such  a 
track  some  new  appliance  or  equip- 
ment, he  is  not  engaged  in  such  com- 
merce? Suppose  that  in  pursuance  of 
its  business  of  interstate  commerce, 
and  to  better  carry  it  on,  the  de- 
fendant had  been  engaged  in  putting 
in  a  switch  along  its  track  used  in 
such  commerce  or  in  constructing  a 
double  track  over  a  part  or  all  of  the 
way.  Is  there  any  good  reason  for 
holding  that  an  employee,  who  is 
engaged  in  repairing  the  track  or 
switch  theretofore  constructed  and 
used,  is  employed  in  such  commerce, 
but  that  one  engaged  in  putting  in  the 
new  switch,  or  the  additional  track, 
is  not  employed  in  such  commerce? 
Or,  suppose  an  employee  had  been 
engaged  several  blocks  to  the  west 
from  where  the  plaintiff  was  at  work, 
say  at  Nampa,  where  the  blocks  were 
completed  and  in  use,  in  repairing 
one  of  those  blocks.  Admittedly, 
such  an  employee  would  have  been 
employed  in  interstate  commerce,  for 
such  a  block  was  then  in  use,   but 


since  the  plaintiff  was  at  work  on  an 
uncompleted  or  unfinished  block, 
which  was  not  yet  in  use,  he  was  not 
engaged  in  such  commerce.  Or, 
lastly,  if  an  employee  is  employed  in 
repairing  a  water  tank  along  a  track, 
one  used  to  supply  interstate  trains, 
operated  over  interstate  tracks,  with 
water,  he  is  employed  in  interstate 
commerce,  but  if  he  engaged  in  con- 
structing along  such  track  a  new 
tank,  which,  because  of  its  incom- 
pleteness, has  not  yet  been  used  by 
the  carrier,  he  is  not  employed  in 
such  commerce.  We  see  no  good 
reason  for  such  artificial  distinctions, 
for  the  use  as  directly  relates  to  the 
interstate  commerce  in  which  the 
carrier  is  engaged  as  does  the  other. 

Here  the  remarks  of  Mr.  Justice 
Van  Devanter  are  pertinent,  when 
he  said  that  it  is  an  erroneous  as- 
sumption 'that  the  interstate  com- 
merce by  railroad  can  be  separated 
into  its  several  elements,  and  the 
nature  of  each  determined  regardless 
of  its  relation  to  others,  or  to  the 
business  as  a  whole",  and  'that  the 
true  fact  always  is:  Is  the  work  in 
question  a  part  of  the  interstate  com- 
merce in  which  the  carrier  is  engaged?' 
Viewed  from  that  standpoint,  we 
think  it  clear  that  one  employed  in 
installing  and  equipping  the  road  with 
the  block  signals  was  engaged  in 
doing  something  which  was  a  part  of 
the  interstate  commerce  in  which 
the  defendant  was  engaged,  to  the 
same  extent  as  one  engaged  in  re- 
pairing a  bridge  or  a  track  used  in 
such  commerce." 

Several  cases  based  upon  the  Peder- 
sen  Case  before  it  reached  the  Su- 
preme Court  of  the  United  States 
cannot  be  regarded  as  authoritative. 
They  are  Pierson  v.  New  York,  etc., 
R.  Co.  83  N.  J.  L.  661;  85  Atl.  233; 
Heimbach  v.  Lehigh  Valley  R.  Co. 
197  Fed.  579;  Foster  v.  Philadelphia, 
etc.,  R.  Co.  197  Fed.  580. 

A  person  engaged  in  putting  in  a 
new  bridge  in  place  of  an  old  inter- 
state one  is  engaged  in  interstate 
commerce.  Arguendo,  Grow  v.  Ore- 
gon Short  Line  R.  Co.  44  Utah  160; 
138  Pac.  398. 


100 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


§  60.     Employees  repairing  interstate  instrumentalities  are 

covered  by  statute.— Somewhat  at  the  risk  of  duplication, 
we  here  enumerate  some  of  the  employees  w4io  have  been 
held  to  be  within  the  provisions  of  the  Federal  Act :  Those  en- 
gaged in  repairing  switches  and  side  tracks  over  which  both 
interstate  and  intrastate  traffic  is  carried  are  such  ;*'  so  a 
carpenter  working  on  a  roundhouse  which  had  been  pre- 
viously used  to  house  engines  used  in  interstate  commerce  -^^ 
so  repairing  in  roundhouse  a  shop  engine  used  in  such  com- 
merce ;'*^  so  a  section  hand  injured  while  putting  in  a  rail 
by  an  iron  splinter  flying  from  the  rail  when  struck,  and 
hitting  him  in  the  eye.^*'    So  a  brakeman  looking  about  the 


"  Jones  V.  Chesapeake  &  0.  Ry. 
Co.  149  Ky.  566;  149  S.  W.  951; 
Truesdell  v.  Chesapeake  &  O.  Ry. 
Co.  159  Ky.  718;   169  S.  W.  471. 

«  Thomas  v.  Boston,  219  Fed.  180, 
reversing  218  Fed.  143.  Thompson 
V.  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 
165  Ky.  256;   176  S.  W.  1006. 

*^  Winters  v.  Minneapolis  &  St. 
L.  Ry.  Co.  126  Minn.  260;  148  N.  W. 
106;  Daer  v.  Baltimore  &  O.  R.  Co. 
197  Fed.  665,  affirmed  204  Fed.  751 
(on  fire  track  ready  to  return). 

In  Law  V.  Illinois  Cent.  R.  Co. 
208  Fed.  869;  126  C.  C.  A.  27,  an 
interstate  engine  had  been  in  the 
shop  for  21  days,  and  was  returned  to 
use  on  the  23d  day.  In  making 
repairs  on  it  a  boiler  helper  was  hurt; 
and  it  was  held  that  he  was  within 
the  Federal  Act,  the  length  of  time 
the  engine  had  been  out  of  use  not 
changing  the  result.  "Under  the 
existing  facts,  can  the  length  of  time 
required  for  the  repairs  change  the 
legal  situation?  If  so,  where  is  the 
line  to  be  drawn?  How  many  days 
temporary  withdrawal  would  suffice 
to  take  it  out  of  the  purview  of  the 
act?  And  is  it  material  whether  the 
repairs  take  place  in  a  roundhouse 
or  in  general  shops?  Is  not  the  t(;st 
whether  the  withdrawal  is  merely 
temporary  in  character?  As  held 
in  the  Pederscn  Case  (229  U.  S.  151; 
33  Sup.  Ct.  648;  57  L.  Ed.  1125) 
the  work  of  keeping  the  instru- 
mentalities used  in  interstate  com- 
rnorce  (which  would  include  engines) 
in    a    proper   state    of   repair,    while 


this  work  is  'so  clearly  related  to  such 
commerce  as  to  be  in  practice  and 
legal  contemplation  a  part  of  it.' 
In  Northern  Pacific  R.  Co.  v.  Maerkl, 
198  Fed.  1;  117  C.  C.  A.  237,  the 
Circuit  Court  of  Appeals  of  Ninth 
Circuit  held  that  an  employee  en- 
gaged at  the  railway  shops  in  making 
repairs  upon  a  refrigerator  car  there- 
tofore used  in  interstate  commerce, 
and  intended  to  be  again  so  used 
when  repaired,  was  within  the  pro- 
tection of  the  Employers'  Liabihty 
Act.  The  repairs  there  in  question 
were  substantial  in  their  nature,  re- 
quiring at  least  a  partial  dismantling 
of  the  car,  which  had  been  in  the 
shop  two  days  when  the  accident 
occurred.  The  rule  announced  by 
this  decision  commends  itself  to  our 
judgment.  We  find  nothing  in  the 
decisions  of  the  Supreme  Court  op- 
posed to  the  conclusion  so  reached. 
On  the  contrary,  it  may  be  noted  that 
the  Maerkl  case  is  cited  (with  appar- 
ent approval)  in  the  opinion  in  the 
Pedersen  case  upon  the  subject  of  the 
test  to  be  applied  in  determining 
whether  the  work  is  a  part  of  the 
interstate  commerce  in  which  the 
carrier  is  engaged." 

"^^  Charleston  &  W.  C.  Ry.  Co.  v. 
Anchors,  10  Ga.  App.  322;  73  S.  E. 
551.  See  page  107,  note  87.  Louis- 
ville &  N.  R.  Co.  V.  Kemp,  140  Ga. 
657;   79  S.  E.  558. 

See,  also,  a  very  similar  case  de- 
cided by  the  Texas  Court  of  Appeals. 
K.  &  T.  Ry.  Co.  V.  Denahy   (Tex. 


TO   WHAT    EMPLOYEES   STATUTE   APPLIES.  JQl 

switch  yards  for  a  tool  boy  to  get  a  tin  cup  for  use  of  the 
train  crew  of  which  the  brakeinan  was  a  member,  the  train 
being  about  to  be  used  in  interstate  commerce.^^  So  in  re- 
pairing cars  in  a  shop  used  indiscriminately  in  interstate 
and  intrastate  commerce.^-  So  in  building  a  new  office  in  an 
old  freight  shed.^^ 

§  61.  Going  to  and  returning  from  work. — Where  an  en- 
gineer was  ordered  to  report  at  a  station  to  be  transported 
with  others  to  another  station  to  relieve  the  crew  of  an  in- 
terstate train,  and  who,  when  approaching  the  station  over  a 
crossing,  was  struck  and  killed  througli  the  negligence  of 
the  servants  of  the  company,  also  operating  an  interstate 
train,  it  was  held  that  an  action  for  his  death  was  rightly 
brought  under  the  Federal  Statute.^*  So  where  a  bridge 
carpenter  was  injured  on  his  way  to  work  on  a  hand  car, 
the  case  was  treated  as  one  lying  under  the  statute.^^  And 
where  a  pumper  at  a  pumping  station  for  locomotives  en- 
gaged in  both  intrastate  and  interstate  commerce  was  fur- 
nished by  the  railroad  company  with  a  small  hand  car  for 
going  two  or  three  miles  from  his  home  to  the  station,  and 
on  the  way  was  struck  by  an  interstate  train,  it  was  held 
that  his  employment  had  a  substantial  connection  with  in- 
terstate commerce,  so  much  so  that  an  action  lay  under  the 

Civ.  App.)   165  S.  "W.  529,  holding  repairing  a  freight  car,  and  there  was 

the  company  liable  is  a  correct  de-  nothing  to  show  whether  it  had  been 

cision.  used   in   interstate   commerce,   either 

A  defective  tool  is  covered  by  the  before  or  after  the  injury,  it  was  held 

Federal  Act.    Gekas  v.  Oregon-Wash.  that  there  could  be  no  recovery  under 

R.  &  Nav.  Co.  (Ore.)  146  Pac.  970.  the  Federal  Act.    Louisville  &  N.  R. 

"  Baltimore    &    Ohio    R.    Co.    v.  Co.  v.  Moore,  156  Ky.  708;  161  S.  W. 

Whitacre,  124  Md.  — ;  92  Atl.  1060.  1129. 

'-  Northern  Pac.  Ry.  Co.  v.  Maerkl,  One  putting  a  new  device  on  an 

198  Fed.  1;  117  C.  C.  A.  237;  Missouri,  interstate  car  is  engaged  in  interstate 

K.  &  T.  Ry.  Co.  V.  Denahy  (Tex.  Civ.  commerce.       Arguendo    in    Grow    v. 

App.)  165  S.  W.  529;  Evans  v.  Detroit,  Oregon  Short  Line  R.  Co.  44  Utah 

G.   H.   &   M.   Ry.   Co.    (Mich.)    148  160;  138  Pac.  398. 

N.  W.  490;  St.  Louis  &  S.  F.  Ry.  Co.  "  Lamphere  v.  Oregon  R.  &  Nav. 

V.  Conarty,  103  Ark.  421;  155  S.  W.  Co.  196  Fed.  336;  116  C.  C.  A.  156, 

93;  Pedersen  v.  Delaware,  L.  &  W.  reversing  193  Fed.  248;  St.  Bernard 

Ry.     Co.,     supra.       Switch     engine.  Cypres  Co.  v.  Johnson,  222  Fed.  246. 

Southern  Pac.  Co.  v.  Pillsbury,  151  "  Kern   v.   Chicago,   M.   &   P.   S 

Pac.  277.  Ry.   Co.   201   Fed.   404;  Knowles  v. 

"Eng  V.   Southern  Pac.   Co.   210  New  York,  N.  H.  &  H.  R.  R.  Co. 

Fed.  92.  (N.  Y.  App.)  150  N.  Y.  Supp.  99. 

Where  a  carpenter  was  injured  in 


102  FEDERAL    EMPLOYERS'    LLXBILITY    ACT. 

Federal  Act.  "The  pumper's  relation  to  actual  transporta- 
tion of  interstate  freight  and  passengers  is  much  more 
direct  and  intimate  than  that  of  a  car  repairer  or  repairer 
of  an  engine  tender,  who  bestows  his  labor  on  instrumen- 
talities while  they  are,  so  to  speak,  temporarily  out  of  com- 
mission. To  allow  a  recovery  to  these  and  not  to  the  pumper 
supplying  the  water  for  motive  power  in  actual  transporta- 
tion, would  smack  of  caprice."^"  So  an  employee  going 
home  from  his  work,  on  a  push  car,  was  held  to  be  within 
the  act.^^  So  an  extra  brakeman  returning  home  on  a  pass,^^ 
and  a  conductor  returning  on  an  intrastate  trip  on  an  intra- 
state shuttle  train  which  had  transported  interstate  com- 
merce on  its  outward  trip.^^  So  a  section  hand  riding  to  his 
camp  after  work.*^"  An  engineer  struck  by  a  train  while 
going  through  the  yards  to  his  work  is  employed  in  inter- 
state commerce.®^  So  a  machinist  going  through  a  switching 
yard  to  repair  an  interstate  locomotive.^'^* 

After  having  given  his  engineer  at  the  engine  a  clearance 
card,  a  conductor  walked  back  to  the  caboose,  inspecting  the 
cars,  some  of  which  were  loaded  with  interstate  traffic,  as  he 
returned.  In  doing  so  he  walked  on  a  "scale  track,"  or 
place  of  danger,  and  was  injured.  It  was  not  necessary  for 
him  to  walk  on  this  track,  and  it  was  contended  that  when 
he  was  \valking  on  it  he  was  not  engaged  within  the  scope 
of  his  employment,  there  being  nothing  in  his  employment 
requiring  him  to  do  so;  but  the  court  said:  "While  it  may 
not  have  been  his  duty  and  was  carelessness  on  his  part,  un- 
der the  facts  of  this  case,  to  walk  upon  the  'scale  track,' 
still  we  think  he  was  engaged  in  interstate  commerce  to  the 
extent  of  getting  his  train  ready  for  that  purpose."**^     So 

''  Horton  v.  Oregon-Washington  R.  Willever  v.  Delaware,  L.  &  W.  R.  Co. 

&  Nav.  Co.  72  Wash.  503;  130  Pac.  (N.  J.)  94  Atl.  595. 

897.  "'  ]Mi.s.souri,   K.   &   T.   Ry.   Co.   v. 

"  Louisville  &  N.  R.  Co.  v.  Walker,  Rentz    (Tex.   Civ.   App.)    162  S.   W. 

102  Ky.  209;  172  S.  W.  517;  Texas  959;  McNamara  v.  Washington  Ter- 

&    P.    R.   Co.   v.   White   (Te.x.)    177  minal  Co.  37  Wash.  D.  C.  384. 

S.  W.  1185.  ""Staley  v.  Illinois  Cent.  R.  Co. 

''St.    Louis,    S.    W.    Ry.    Co.    v.  (111.)    109   N.   E.   342,   reversing   186 

Urothers  (Tex.  Civ.  App.)  165  S.  W.  111.  App.  593;  New  York  Central  & 

4S8.    See  also  Mis.souri,  K.  &  T.  Ry.  II.   R.   K.  Co.  v.  Carr,  35  Sup.  Ct. 

Co.  (Tex.  Civ.  App.)  162  S.  W.  959.  780,    afllrming    157    App.    Div.   941; 

"  Peery  v.  Illinois  Central  R.  Co.  142  N.  Y.  Siipp.    1111. 

123  Minn.  2(^1;  143  X.  W.  724.  "■'  Neil  v.  Idaho  R.  Co.  22  Idaho J4; 

•»  San  Pe<lr(),  L.  A.  <t  S.  L.  R.  Co.  v.  125  Pac.  331. 
David,  210  Fed.  870;  127  C.  C.  A.  454. 


TO   WHAT    EMPLOYEES    STATUTE   APPLIES. 


103 


going  to  a  nearby  saloon  during  the  period  of  employment, 
and  on  returning  receiving  an  injury  does  not  bar  a  recov- 
ery under  the  statute."*'  But  where  an  employee  on  a  work 
train  was  going  for  the  erevv-'s  mail  when  he  was  injured, 
it  was  held  he  could  not  recover  under  the  statute."'  So  a 
servant  of  a  railroad  company  acting  as  a  watchman  or  care- 
taker of  a  dead  engine  which  was  being  hauled  by  an  inter- 
state train  from  one  state  to  another."^  This  question,  how- 
ever, is  not  so  much  one  under  the  Federal  Act  as  it  is  one 


«8  Gaber  v.  Duluth,  S.  S.  &  A.  Ry. 
Co.  (Wis.)  150  N.  W.  489. 

«^  Myers  v.  Norfolk  &  W.  Ry.  Co. 
162  N.  C.  343;  78  S.  E.  280. 

So  where  an  employee  was  riding 
home,  by  permission,  on  one  of  the 
company's  trains,  it  was  held  that 
he  was  not  within  the  provisions  of 
the  statute.  Bennett  v.  Lehigh 
Valley  R.  Co.  197  Fed.  578.  This  is 
a  doubtful  case  because  it  was  based 
on  the  decision  in  the  Pedersen  Case 
before  it  was  reversed. 

^*  "Clearly  the  defendant  was  en- 
gaged in  interstate  commerce,  and 
the  dead  engine  was  one  of  the  in- 
strumentalities ordinarily  used  by 
the  defendant  in  carrying  on  its 
business,  and  the  fact  that  this  in- 
strumentality was  not  being  put  to 
the  precise  use  for  which  it  was  de- 
signed at  the  particular  time  when 
the  injury  occurred  to  the  plaintiff 
does  not  alter  the  fact  that  the  de- 
fendant was  engaged  in  an  act  of 
interstate  commerce  at  the  time  the 
plaintiff  was  injured,  and  that  the 
plaintiff  was  in  the  performance  of 
his  duties  in  the  line  of  his  employ- 
ment and  was  injured  by  the  de- 
fective condition  (as  he  claims)  of 
one  of  the  instrumentalities  ordinarily 
used  in  that  business  by  the  defend- 
ant, but  at  that  time  temporarily  re- 
moved from  service.  Suppose  there 
had  been  an  empty  freight  car  unfit 
for  the  service  of  hauling  freight  being 
carried  in  this  train  engaged  in  inter- 
state  commerce  between  the  States 


of  Georgia  and  Alabama,  and  the 
plaintiff  had  gone  upon  this  car  and 
been  injured  as  a  proximate  con- 
sequence of  a  defect  in  the  car  while 
in  the  performance  of  the  duties  of 
his  employment  on  the  train,  as,  say, 
a  brakeman,  while  enroute  between 
these  two  points  in  the  different 
states.  Could  it  be  said  in  such  a 
case  that,  because  the  freight  car  at 
the  time  of  the  injury  was  unfit  for 
use  and  was  not  being  used  at  that 
particular  time  as  an  instrumentality 
of  interstate  commerce  or  traffic, 
the  plaintiff  was  not  performing  any 
act  for  the  defendant  with  respect  to 
its  engagement  in  interstate  com- 
merce, and  that  the  plaintiff  was  not 
injured  'while'  engaged  or  employed 
by  defendant  in  such  commerce,  and 
therefore  not  under  the  protection 
and  influence  of  rights  secured  to 
employees  under  the  Federal  Em- 
ployers' Liability  Act?  We  think 
not.  Nor  do  we  think  it  could  fairly 
be  said  that  the  plaintiff  in  the  in- 
stant case  was  not  injured  while 
engaged  or  employed  by  the  defend- 
ant in  interstate  commerce.  It  is 
the  substance  of  things  that  should 
be  looked  to  in  dealing  with  rights 
created  and  conserved  under  the 
authority  of  the  Federal  Constitution 
and  the  act  under  consideration  should 
be  as  broadly  and  liberally  construed 
as  possible."  Atlantic  Coast  Line 
R.  Co.  V.  Jones,  9  Ala.  App.  499; 
63  So.  693. 


204  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

under  the  general  law,  and  in  the  note  below  are  a  number 
of  eases  cited  on  this  subject.*'^ 

§  62.  Pullman  car  employees — Express  agent — ^Railroad 
surgeon's  malpractice. — A  porter  on  a  Pullman  car  was  in- 
jured while  in  transit.  The  car  was  owned  jointly  by  the 
defendant  railroad  and  the  Pullman  Car  Company,  and  was 
operated  by  them  as  an  association  under  a  contract  giving 
the  Pullman  company  the  management  of  the  car,  all  obli- 
gations with  reference  to  operations  of  cars  to  be  borne  by 
the  association,  which  should  furnish  each  car  one  or  more 
employees,  who  should  be  subject  at  all  times  to  railroad 
rules  governing  its  own  employees,  the  earnings  of  th?  cars 
to  be  divided  between  the  two  companies  in  a  certain  propor- 
tion. In  the  event  of  a  liability  arising  against  the  railroad 
company  for  personal  injuries  to  an  employee  of  the  asso- 
ciation, the  railroad  company  was  to  be  liable  only  to  the 
same  extent  it  would  be  if  the  person  injured  were  an  em- 
ployee in  fact  of  the  railroad  company,  and  for  all  excess 
liability  the  railroad  company  was  to  be  indemnified  and  to 
be  paid  by  the  owners  of  the  car.  It  was  held  that  the  porter 
was  an  employee  of  the  railroad  company  within  the  mean- 
ing of  the  Federal  Act,  so  that  the  railroad  was  not  released 
by  a  provision  in  his  contract  of  employment  purporting  to 
release  both  the  Pullman  company  and  the  railroad  company 
from  liability  for  an  injury  he  might  receive  or  for  an  injury 
received  in  such  employment.''"  But  an  agent  of  an  express 
company  can  not  recover,  where  he  rides  on  trains  of  the 


«  Harris  v.  City  &  E.  G.  R.  Co.  33  Ohio  St.  150;  Vick  v.  N.  Y.  Cent., 

69  W.  Va.  65;  70  S.  E.  859;  Dodge  v.  etc,  R.  Co.  95  N.  Y.  267;  47  Am. 

Chicago,    G.    W.    R.    Co.    (la.)    146  Rep.  36;  O'Brien  v.  Boston,  etc.,  R. 

N.  W.  14;  Louisville  &  N.  R.  Co.  v.  Co.  138  Mass.  387;  52  Am.  Rep.  279; 

Scott,   108  Ky.  382;  56  S.  W.  674;  O'Donnel    v.    Allegheny    R.    Co.    59 

50  L.  R.  A.  .381;  Baird  v.  Northern  Pa.  St.  239;  98  Am.  Dec.  336;  Shan- 

Pac.  R.  Co.  78  Wash.  67;   138  Pac.  non  v.  Union  R.  Co.  27  R.   I.  475; 

.325;  Kindcllen  v.  Mt.  Wash.  R.  Co.  63  Atl.  488. 

76  N.  II.  .54;  79  Atl.  691;  lannone  v.  "^  Oliver  v.  Northern  Pac.  Ry.  Co. 

New  York,  etc.,  R.  Co.  21  R.  I.  452;  216  Fed.  432;  Oliver  v.  Northern  Pac. 

44  Atl.  .592;  46  L.  R.  A.  730;  79  Am.  Ry.  Co.  196  Fed.  432. 
St.  812;  Kumler  v.  Junction  R.  Co. 


TO   WHAT    EMPLOYEES   STATUTE   APPLIES.  JQS 

railroad  company  and  has  charge  of  express  matter  thereon 
shipped  by  the  express  company.  He  is,  in  fact,  a  passenger 
entitled  to  the  same  protection  as  any  other  passenger.  In 
such  a  case  the  burden  is  on  the  railroad  company  to  show 
that  the  injured  agent  was  in  its  employ  also,  if  it  desires 
to  bring  itself  within  the  provisions  of  the  Federal  Act.*'^ 
If  an  employee  be  injured  while  engaged  in  the  interstate 
commerce  of  his  employer,  and  the  surgeon  of  the  employer 
is  guilty  of  malpractice  in  treating  his  injuries,  the  employer- 
carrier  is  liable  under  the  Federal  Act  for  injuries  thus  in- 
flicted.^* 

§  63.  Cases  holding  employee  not  engaged  in  interstate 
commerce  when  injured. — In  the  following  cases  it  was  held 
that  the  injured  employee  was  not  engaged  in  interstate 
commerce  when  injured :  A  carpenter  repairing  a  freight 
car  where  no  facts  were  shown  in  regard  to  the  prior  or  sub- 
sequent use  of  the  car.^°  A  roundhouse  employee  cleaning 
an  engine  which  had  just  completed  an  intrastate  trip.''^ 
An  employee  repairing  the  boiler  of  the  engine  of  a  wreck 
train  while  the  boiler  was  detached  from  the  engine."-  A 
hostler  preparing  an  engine  which  might  or  might  not  go  on 
an  interstate  journey.''^  An  employee  unloading  new  rails 
with  which  the  track  was  to  be  repaired.^*  So  an  employee 
engaged  in  building  a  tunnel.'^^  A  crew  on  a  train  made  up 
partly  of  cars  which  had  come  from  another  state  after  leav- 
ing a  distribution  point  within  the  state  on  separate  orders 

But  the  ordinary  Pullman  porter  151  Pac.  277;  Cross  v.  Chicago,  B. 

has  no  claim  on  the  railroad  company  &  Q.  R.  Co.  (Mo.)  177  S.  W.  1127. 
as  an  employee.     Robinson  v.  Balti-  "  Ruck  v.  Chicago,  M.  &  St.  P.  Ry. 

more  &  Ohio  R.  Co.  237  U.  S.  84;  Co.  153  Wis.  158;  140  N.  W.  1074. 
35  Sup.  Ct.  491.  "Gray  v.  Chicago  &  N.  W.  Ry. 

"  Missouri,  etc.,  R.  Co.  v.  Blalock  Co.  153  Wis.  637;  142  N.  W.  505. 
(Tex.  Civ.  App.)  147  S.  W.  559.  '*  Pierson  v.  New  York,  S.  &  W. 

«*  Atlantic  Coast  Line  R.  Co.  v.  R.  Co.  83  N.  J.  L.  661;  85  Atl.  233. 

Whitney,  63  Fla.  124;  56  So.  937.  But  this  case  is  no  longer  an  authority 

'"  Louisville  &  N.  R.  Co.  v.  Moore,  since   the   decision   in   the   Pedersen 

156  Ky.  708;  161  S.  W.  1129.  case. 

"  La  Casse  v.  New  Orleans,  T.  &  "  Jackson   v.   Chicago,   M.   &   St. 

M.  R.  Co.  135  La.  129;  64  So.  1012;  P.  Ry.  Co.  210  Fed.  495. 
Southern  P.  Co.  v.  Pillsbury  (Cal.) 


106  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

for  a  point  within  the  state."*'  An  employee  working  when 
injured  on  a  switch  engine  hauling  cars  loaded  with  intra- 
state commerce,  but  preparing  to  move  other  cars  loaded 
with  interstate  commerce.^'  A  gardener  engaged  by  an  in- 
terstate carrier  to  care  for  the  depot  premises  and  cultivate 
the  yards. '^  An  engineer  running  between  points  within  the 
state  a  detached  engine  which  was  ultimately  destined  for  a 
point  without  the  state. "'^  A  street  car  conductor  on  an 
intrastate  car,  whose  duty  it  was  to  keep  a  lookout  for  in- 
terstate cars  in  order  to  let  them  pass  in  safety  and  without 
delay,  and  who  was  injured  by  an  interstate  car.*'^  Remov- 
ing a  shaft  hanger  in  a  machine  house  bolted  to  a  steel  girder 
or  truss  to  reset  on  same  girder  about  two  feet  from  its 
original  position.^^  A  yard  switchman  injured  by  a  fast 
moving  train  containing  no  interstate  commerce.*-  A  brake- 
man  coupling  an  intrastate  car  to  an  engine  which  was  im- 
mediately thereafter  put  into  an  intrastate  freight  train.*^ 
Employee  struck  by  intrastate  train  while  oiling  a  switch.** 
A  seal  clerk  inspecting  the  cars  of  a  train  who  was  killed 
just  after  inspecting  the  cars,  and  while  the  train  was  being 
pulled  out  of  the  yards  and  he  was  crossing  another  track, 
by  a  switch  engine,  his  purpose  in  crossing  the  track  not 
being  shown. *^  An  employee  hauling  water  to  be  used  in 
interstate  engines,  but  which  had  to  be  pumped  after  reach- 


"  Louisville  &  N.  R.  Co.  V.  Strange,  180  Mo.  App.  501;  168  S.  W.  336; 

156  Ky.  439;  101  S.  W.  239.    Repair-  Kiser   v.   Metropolitan   St.   Ry.   Co. 

ing  such  a  car.    Parsons  v.  Delaware  (Mo.)  175  S.  W.  98. 

&  II.  Co.  153  N.  Y.  Supp.  179.  "  Shanks  v.  Delaware,  L.  &  W.  R. 

"  Illinois  Central  R.  Co.  v.  Behrens,  Co.  103  App.  Div.  565;    148  N.  Y. 

233  U.  S.  473;  34  Sup.  Ct.  640;  58  L.  Supp.  1034. 

Ed.  1051;  Ivouisville  &  N.  R.  Co.  v.  "Norton  v.  Erie  R.  Co.  163  App. 

Parker,  165  Ky.  658;  117  S.  W.  46,3;  Div.  408;  148  N.  Y.  Supp.  709. 

Atchison,  T.  &  S.  F.  Ry.  Co.  v.  Pitts  "  Atchison,  T.  &  S.  F.  Ry.  Co.  v. 

(Okla.)  145  Pac.  1148.  Pitts  (Okla.)  145  Pac.  1148. 

"*  Galveston,  H.  &  S.  A.  Ry.  Co.  ■**  Granger  v.  Pennsylvania  R.  Co. 

V.  Chojnacky  (Tex.  Civ.  App.)  163  S.  84  N.  J.  L.  338;  86  Atl.  204. 

W.  1011.  If   this  switch   was   a  part  of  an 

"  Wright  V.   Chicago,   R.   I.  &  P.  interstate  railroad  and  used  in  trans- 

R.  Co.  91  Neb.  317;  143  N.  W.  220.  portation  of  interstate  commerce,  the 

Contra,  Killed,  in  a  collision.    Hearst  decision  is  erroneous. 

V.  St.  Iy)ui8,  I.  M.  &  S.  R.  Co.  (Mo.)  "  Pecos  &  N.  T.  Ily.  Co.  v.  Roscn- 

173  S.  \V.  86.  bloom  (Tex.  Civ.  App.)   141  S.  W. 

"o  MUlcr  v.  Kansas  City  W.  R.  Co.  175. 


TO    WHAT    EMPLOYEES    STATUTE   APPLIES.  207 

ing  its  destination.^*'  An  employee  injured  by  an  iron 
splinter  flying  from  a  railroad  rail  being  laid  in  an  interstate 
road.**^  A  carpenter  building  a  coal  chute  for  an  interstate 
carrier.®^  An  engine  hostler  injured  in  yards  dispatching 
engines  engaged  in  both  intrastate  and  interstate  com- 
merce.^" An  employee  steaming  up  a  locomotive  in  an  en- 
gine house,  the  last  trip  of  which  was  in  intrastate  com- 
merce.'-"' An  engineer  fell  into  a  roundhouse  pit.  It  was 
held  that  he  could  not  recover  if  he  went  into  the  round- 
house for  his  own  purpose,  or  if  it  can  not  be  determined 
from  the  evidence  that  he  went  there  for  purposes  of  em- 
ployment.''^ An  employee  engaged  in  mining  coal  in  one  of 
the  mines  of  the  railroad  w^as  held  not  to  be  engaged  in 
interstate  commerce.''-  A  laborer  working  on  a  train  injured 
while  endeavoring  to  board  a  freight  train  on  Sunday  to  get 
mail  for  his  camp,  in  compliance  Avith  the  directions  of  his 
assistant  foreman."^  An  employee  working  as  a  mechanic 
principally  in  running  a  machine  where  he  shaped  parts  to 
be  used  in  the  repair  of  locomotives  in  immediate  need  of 
repair,  and  generally,  but  not  exclusively,  in  the  repair  of 
locomotives,  used  in  interstate  commerce,  injured  while  an- 


sa Missouri,  K.  &  T.  Ry.  Co.  V.  '"La  Casse  v.  New  Orleans,  T.  & 

Fesimire  (Tex.  Civ.  App.)  150  S.  W.  M.  R.  Co.  1.35  La.  129;  64  So.  1012. 

201.     The  soundness  of  this  decision  "A  locomotive  or  empty  car  which  has 

is  doubtful.  completed    an    intrastate    run,    and 

8^  Charieston  &  W.  C.  Ry.  Co.  v.  may  on  its  next  run  be  used  in  like 

Anchors,  10  Ga.  App.  322;  73  S.  E.  manner  in  intrastate  commerce,  can- 

551.  not  be  said  to  be  actually  engaged  in 

"We  think  this  decision  is  not  sound.  interstate  commerce.    The  most  that 

See  to  the  contrary,  Missouri,  K.  &  can  be  said  is  that  it  has  been  so 

T.   Ry.   Co.   V.   Denahy    (Tex.   Civ.  used,  if  such  be  the  fact,  and  that  it 

App.)  165  S.  W.  529.  may  on  the  next  run  be  so  used." 

88  Voris  V.  Chicago,  M.  &  St.  P.  Ry.  Contra,    Tonseliito    v.  N.  Y.    Cent. 

Co.  172  Mo.  App.   125;  157  S.  W.  &  H.  R.  R.  Co.  (N.  J.)  94  Atl.  804. 

835  s'  Padgett    v.    Seaboard    Air    Line 

8«  Gray  v.  Chicago  &  N.  W.  Ry.  Ry.  Co.  98  S.  C.  244;  83  S.  E.  633. 

Co.  153  Wis.  637;  142  N.  W.  505.  "^  Delaware,    L.   &   W.   R.   Co.   v. 

The   case   of  Atlantic   Coast  Line  Yurkonis,  220  Fed.  429,  affirming  213 

R.   Co.   V.   Whitney    (Fla.);   56   So.  Fed.  537;  affirmed  2.38  U.  S.  439. 

937,  seems  in  part  to  be  to  recover  ^'  Myers  v.  Norfolk  &  W.  Ry.  Co. 

damages  for  malpractice  of  a  rail-  162  N.  C.  343;  78  S.  E.  280 
road's  surgeon. 


108  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

gaged  in  moving  the  countershaft  which  supplied  power 
to  the  shaping  machine  by  the  wheels  of  a  traveling  crane.^* 
Inspecting  trains  which  ran  on  a  division  of  an  interstate 
railroad  wholly  within  the  state,  when  he  was  struck  and 
killed  by  another  train  of  the  same  division,  where  no  evi- 
dence was  given  to  show  that  any  passenger  or  baggage  on 
either  train  was  destined  for  a  point  in  another  state,  though 
the  time  tables  of  the  company  expressed  a  readiness  to 
transport  interstate  passengers  over  that  division  and  trans- 
fer them  to  interstate  trains.^^  A  coal  miner  mining  coal 
in  the  mine  of  an  interstate  railroad  company  is  not  en- 
gaged in  interstate  commerce  though  some  of  the  coal  may 
be  used  on  interstate  locomotives.^^*  ^  flagman  at  a  street 
crossing.^^ 

§  64.    Switching  crew  moving'  interstate  commerce — In- 
tention to  immediately  move  interstate   commerce. — In   a 

leading  case  the  facts  were  these :  "The  intestate  was  in  the 
service  of  a  railroad  company  as  a  member  of  a  crew  at- 
tached to  a  switch  engine  operated  exclusively  within  the 
city  of  New  Orleans.  He  was  the  fireman,  and  came  to  his 
death  while  at  his  post  of  duty  through  a  headon  collision. 
The  general  work  of  the  crew  consisted  in  moving  cars  from 
one  point  to  another  within  the  city  over  the  company's 
tracks  and  other  connecting  tracks.  Sometimes  the  ears 
were  loaded,  at  other  times  empty,  and  at  still  other  times, 
some  were  loaded  and  others  empty.  When  loaded  the 
freight  in  them  was  at  times  destined  from  within  to  with- 
out the  state  or  vice  versa;  at  other  times  was  moving  only 
between  points  within  the  state,  and  at  still  other  times  was 
of  both  classes.  "When  the  cars  were  empty  the  purpose 
was  usually  to  take  them  where  they  were  to  be  loaded  or 
away  from  where  they  had  been  unloaded.  And  oftentimes 
following  the  movement  of  cars,  loaded  or  empty,  to  a  given 
point,  other  cars  were  gathered  up  and  taken  or  started 
elsewhere.    In  short,  the  crew  handled  interstate  and  intra- 


"  Shanks   v.   Delaware,   L.   &   W.  221  Fed.  453;  Barker  v.  Kansas  City 

R.  Co.  (N.  Y.)  108  N.  E.  644.  M.  &  O.  R.  Co.  (Kan.)  146  Pac.  358. 

»"  Louisville  &  N.  R.  Co.  V.  Barrett  "'Delaware,   L.  &  W.  R.  Co.  v. 

85  S.  E.  923.  Yurkonis,     35    Sup.    Ct.    902;    case 

•*  Boyle    V.    Pennsylvania    R.    Co.  below  220  Fed.  429. 


TO   WHAT    I5MPLOYEES    STATUTE   APPLTES.  109 

state  traffic  indiscriminately,  frequently  moving  both  at 
once  and  at  times  turning  directly  from  one  to  the  other. 
At  the  time  of  the  collision  the  crew  was  moving  several 
cars  loaded  with  freight  which  was  wholly  intrastate,  and 
upon  completing  that  movement  was  to  have  gathered  up 
and  taken  to  other  points  several  other  cars  as  a  step  or 
link  in  their  transportation  to  various  destinations  within 
and  without  the  state."  Upon  those  facts  it  was  held  that 
the  deceased  fireman  was  not  engaged  in  interstate  com- 
merce when  injured.  "Here  at  the  time  of  the  fatal  in- 
jury," said  the  court,  "the  intestate  was  engaged  in  moving 
several  cars,  all  loaded  with  intrastate  freight  from  one 
part  of  the  city  to  another.  That  was  not  a  service  in  inter- 
state commerce,  and  so  the  injury  and  resulting  death  were 
not  within  the  statute.  That  he  was  expected,  upon  the 
completion  of  that  task,  to  engage  in  another  which  would 
have  been  a  part  of  interstate  commerce,  is  immaterial  un- 
der the  statute,  for  by  its  terms  the  true  test  is  the  nature 
of  the  work  being  done  at  the  time  of  the  injury.  "^"^ 

§  65.    Relation  between  the  emplojrment  and  the  accident. 

— The  statute  expressly  limits  the  right  of  recovery  to  a 
"person  suffering  injury  while  he  is  employed  by  such  carrier 
in  such  commerce,"  namely,  in  interstate  commerce  in  the 
states  or  general  commerce  in  the  territories.  If  the  injury 
arises  from  a  cause  in  no  manner  connected  with  or  arising 


98  Illinois  Central  R.  Co.  v.  Behrens,  M.  &  0.  Ry.  Co.  (Kan.)  146  Pac.  358; 
233  U.  S.  473;  34  Sup.  Ct.  646;  58  L.  McAuliffe  v.  New  York,  C.  &  H.  R.  R. 
Ed.    1051;   Barker  v.   Kansas   City,      Co.  150  N.  Y.  Supp.  512. 


210  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

out  of  his  employment,  then  he  cannot  recover  damages 
under  this  statute.  This  is  emphasized,  as  it  were,  by  the 
title  of  the  Act,  which  is  "An  Act  relating  to  the  liability 
of  common  carriers  by  railroads  to  their  employees  in  cer- 
tain cases."  The  accident  must  occur  or  the  injury  be 
received  from  a  cause  which  arises  out  of  or  is  incidental  to 
railway  employment.  As  was  said  in  an  English  case,  on 
an  analogous  question,  there  must  be  "some  casual  rela- 
tion between  the  employment  and  the  accident.  "^^  Thus 
where  a  workman  A  maliciously  threw  a  piece  of  iron  at 
workman  B,  which  struck  the  eye  of  workman  C  who  was 
at  work,  it  was  decided  that  a  workman  who  was  injured 
through  the  tortious  act  of  a  fellow-workman,  which  had 
no  relation  whatever  to  their  employment,  had  no  claim 
against  his  employer,  on  the  ground  that  the  injury  did  not 
arise  out  of  the  employment.  "It  seems  to  me,"  said  the 
court,  "that  in  such  a  case  the  accident  would  not  arise  'out 
of  or  in  the  course  of  the  employment.'  It  would  not  be 
an  accident  of  the  employment  at  all.  It  would  be  entirely 
outside  the  scope  of  the  employment  of  the  doer  of  the  act 
and  of  the  injured  workman.  *  *  *  It  seems  to  me,  as  a 
matter  of  law,  that  we  cannot  say  that  the  injury  caused 
by  a  missile  thrown  by  another  workman  entirely  outside 
the  scope  of  his  employment  was  caused  by  an  accident 
which  arose  out  of  his  employment. "  ^-  "  The  test, ' '  said 
an  American  judge,  "of  the  employer's  liability  is  not  the 
fact  that  the  negligent  act  of  the  servant  was  during  the 
existence  of  his  employment ;  nor  is  the  fact  that  his  act  was 
done  during  the  time  he  was  doing  some  act  for  his  em- 
ployer. But  the  test  is:  was  the  act  causing  the  injury 
done  in  the  prosecution  of  the  master's  business?"^-*     In 

3'  O'Brien   v.    Star   Line   Limited,  P.    Ry.    Co.    178    Fed.    432,    citing 

1    Butterworth's    Workmen's    Com-  Chicago    v.    Barker,   131    Fed.    161; 

pensation  Cases,  177,  181;    St.  Louis  Bowen    v.    Illinois    Central    R.   Co. 

&  S.  F.  R.  R.  V.  Conerty,  238  U.  S.  130  Fed.  306;  St.  Louis  S.  W.   Ry. 

243;  Bjorn8(!n  v.  Northern  P.  Ry.  Co.  Co.     v.     Harvey,     144     Fed.     806; 

(Wash.)  140  Pac.  575.  Morier   v.    St.    Paul,    M.   &    M.    R. 

'^Armitage    v.    Lancashire    &    G.  Co.   31   Minn.   351;   17   N.   W.   952, 

Ng.   Co.   4    Minton-Senhose   Work-  and   Hudson   v.   Missouri,   K.   &   T. 

men's  Compensation  Cases,  5.  R.  Co.  16  Kan.  470. 

'2*  Jackson    v.    Chicago,    R.    I.   & 


TO   WHAT    EMPLOYEES   STATUTE   APPLIES.  JH 

another  English  case  it  was  said:  "But  where  the  servant, 
instead  of  doing  that  which  he  was  employed  to  do,  does 
something  which  he  was  not  employed  to  do  at  all,  the 
master  cannot  be  said  to  do  it  by  his  servant, ' '  ^^  and  in 
another  case,  "but  if  he  was  going  on  a  frolic  of  his  own, 
without  being  at  all  on  his  master's  business,  the  master 
will  not  be  liable."^* 

§  66.  Who  must  inflict  injury  to  render  railway  com- 
pany liable. — In  the  first  section  of  the  statute  the  railway 
company  is  rendered  liable  only  where  the  injury  or  the 
death  results  in  whole  or  in  part  from  "the  negligence  of 
any  of  the  officers,  agents,  or  employees"  of  the  carrier 
company.  This  is  aside  from  defective  or  insufficient  appli- 
ances, cars,  engines,  machinery,  track,  roadbed,  works, 
boats,  wharves,  or  other  equipment.  It  necessarily  follows 
where  the  injury  is  inflicted  by  one  of  the  persons  enumer- 
ated that  the  negligence  to  be  actionable  must  be  that  of 
such  persons  in  the  capacity  of  officers,  agents,  or  em- 
ployees as  such.  This  negligence  must  be  incidental  and 
relate  to  the  company's  business — having  some  natural  rela- 
tion to  the  employment  or  to  its  business.  If  the  injury  or 
death  is  received  from  a  cause  entirely  disconnected  from 
the  employment,  or  at  a  time  and  place  disconnected  from 
it,  there  is  no  liability  on  the  part  of  the  company.^** 

§  67.  Interstate  employee  injured  by  negligence  of  intra- 
state employee. — The  statute  wipes  out  the  rule  of  fellow- 
servant.  Then,  if  an  employee  is  injured  while  engaged 
in  interstate  commerce  by  the  negligent  act  of  an  intra- 


'3  Mitchell  V.  Crassweller,  13  C.  B.  "•  Cincinnati,  N.  O.  &  T.  P.  Ry. 

235.  Co.  V.  Swann,  160  Ky.  458;  169  S. 

3<  Joel  V.  Morrison.  6  C.  &  P.  501.       W.  886;  Padgett  v.  Seaboard  A.  L. 

Ry.  98  S.  C.  244;  83  S.  E.  633. 


]^22  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

state  commerce  servant,  can  lie  recover?  Unquestionably 
he  can.  The  test  is,  ''was  the  servant  injured  while  engaged 
in  interstate  commerce  by  the  negligence  of  his  employer?" 
If  he  was,  he  may  recover,  and  it  matters  not  that  the  ser- 
vant inflicting  the  injury  was  engaged  only  in  intrastate 
commerce.  It  would  be  just  as  logical  to  claim  that  the 
company  was  not  liable  because  he  was  injured  by  an 
instrument  not  used  in  interstate  commerce,  for  which 
no  one  would  seriously  contend.  Such  an  instance  would  be 
where  an  employe  is  injured  by  the  collision  of  his  train 
with  an  intrastate  train.  A  rule  that  there  could  be  no 
recovery  in  such  instances  would  to  a  great  extent  nullify  the 
usefulness  and  object  of  the  statute.  Whenever  it  is  a  nec- 
essary incident  to  the  regulation  of  interstate  commerce, 
Congress  can  control,  to  that  extent,  intrastate  commerce. 
Unquestionably  Congress  can,  if  necessary  to  protect  in- 
terstate employes,  treat  interstate  employes  simply  as 
employes  of  the  company  and  impute  their  negligence 
to  the  company.  Nor  can  it  be  claimed  that  the  act  is 
void  because  it  invades,  on  this  point,  the  police  power  of 
the  state  and  because  the  United  States  has  no  police 
power;  for,  although  the  police  power  of  the  state  is  os- 
tensibly exclusive  to  it,  and  the  Federal  Government  has 
no  police  power  in  itself,  yet  Congress  may,  under  the 
constitution,  pass  all  laws  which  are  essential  to  make  ef- 
fective the  powders  belonging  to  it.  If  it,  therefore,  becomes 
essential  for  Congress  to  exercise  powers  that  invade  police 
regulations  of  a  state,  for  the  purpose  of  making  effective  its 
powers,  it  may  do  so.^^  ''The  effect  of  the  statute  is  to 
abolish,  to  the  limited  extent  indicated  [therein],  the  com- 
mon law  doctrine  which  forbade  the  recovery  of  damages 
for  injuries  to  employees  sustained  by  the  negligence  of 
fellow-servants.    The  act  also,  in  other  provisions  not  under 

^'-  Watson  V.   St.   Louis,   I.   M.   &  that  the  injury  must  be  inflicted  by 

S.  Ry.  Co.  1G9  Fed.  942.  an     interstate     employee,     although 

In   Zikos  V.  Oregon  R.   &   N.  Co.  that     was    a     mere    expression     not 

17'J  Fed.  893,  there  is  an  intimation  amounting  even  to  a  dictum. 


TO   WHAT    EMPLOYEES    STATUTE   APPLIES.  ^13 

consideration  here,  modifies  the  rule  of  contributory  negli- 
gence and  the  doctrine  of  assumption  of  risk. 

"  It  is  the  relation  only  between  the  carrier  and  the  employee 
who  is  injured  while  he  is  engaged  in  interstate  or  foreign 
commerce  that  is  regulated  by  the  imposition  of  the  liabil- 
ity mentioned.  The  fallacy  of  the  contention  that  the  act 
seeks  to  regulate  the  relations  between  the  carrier  and  its 
employees  who  are  not  engaged  in  interstate  commerce,  is 
shown  by  the  fact  that  no  change  whatever  is  made  by 
the  statute  in  their  relations,  no  liability  being  imposed 
upon  the  carrier  for  injuries  suffered  by  an  employee  when 
not  engaged  in  interstate  commerce  by  reason  of  the  neg- 
ligence of  a  fellow-servant. 

"It  is  manifest  that  the  primary  object  of  the  statute  in 
question  was  not  simply  to  give  a  right  of  action  where 
none  before  had  existed,  but,  by  imposing  a  liability  upon 
the  carrier  for  injury  suffered  by  an  employee  while  en- 
gaged in  interstate  commerce  through  the  negligence  of  a 
fellow-servant,  or  by  reason  of  any  defect  due  to  its  neg- 
ligence in  its  cars,  engines,  appliances,  etc.,  to  insure  a 
greater  degree  of  care  on  the  part  of  the  carrier  for  the 
protection  of  the  employee  while  engaged  in  interstate  or 
foreign  commerce,  and  of  the  persons  and  property  whose 
safety  might  be  dependent  upon  the  safety  of  such  em- 
ployee. The  statute  is  founded  on  a  different  view  as  to 
the  requirements  of  public  policy  in  respect  to  matters  of 
this  kind  from  that  anciently  entertained  by  the  courts 
who  formulated  the  common  law  doctrine.  In  this  aspect 
of  the  case,  it  is  immaterial  what  may  be  the  nature  of  the 
agency,  whether  animate  or  inanimate,  that  causes  such 
injury,  provided  it  may  be  something  for  the  negligent 
conduct  or  existence  of  which  the  carrier  may  properly  be 
made  responsible. 

"Take  the  subject  of  inanimate  things,  for  instance.  Sup- 
pose a  railroad  company  engaged  in  interstate  commerce 
so  negligently  constructs  a  bridge  across  its  road  that  an 
employee    while    engaged    in    such    commerce    is    injured 


114  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

thereby,  the  bridge  being  used  for  the  convenience  of  local 
traffic  only.  Will  it  be  said  that  Congress  could  not  impose 
a  liability  upon  the  railroad  company  for  its  negligence  in 
that  regard,  and  that  if  it  did  so  it  would  be  regulating 
intrastate  commerce?  "What  difference  in  principle  is  there 
between  the  case  suggested  and  that  of  a  railroad  engaged 
in  interstate  commerce  which,  through  the  negligence  of  its 
officers,  agents  and  employees,  so  negligently  runs  a  local 
train  upon  its  interstate  lines  as  to  injure  an  employee 
upon  an  interstate  train  while  he  is  engaged  in  such  com- 
merce ?  In  applying  the  rule  of  respondeat  supenor  to  such 
cases  Congress  has  only  undertaken  to  impose  a  liability  upon 
the  carrier  to  the  extent  necessary  for  the  proper  protec- 
tion of  interstate  commerce. 

"If  Congress  cannot  make  the  carrier  liable  for  injuries 
suffered  by  an  employee  while  he  is  employed  in  interstate 
commerce,  caused  by  the  negligence  of  any  of  the  other 
employees  of  the  carrier,  irrespective  of  the  nature  of  the 
business  in  which  the  latter  may  at  the  time  be  employed, 
manifestly  it  cannot  protect  such  employee,  and  through 
him  the  interstate  commerce  in  which  he  is  employed, 
against  a  very  large  percentage  of  the  injuries  which  are 
likely  to  occur  to  him  and  for  which  the  carrier  should 
properly  be  held  responsible. 

"It  is  further  to  be  observed  that,  although  the  agency 
of  the  carrier,  animate  or  inanimate,  which  may  occasion 
injury  to  an  employee  while  he  is  engaged  in  interstate  com- 
merce, may  not  itself  be  engaged  or  employed  in  such  com- 
merce, yet,  necessarily,  in  order  to  come  within  the  scope  of  the 
act,  it  enters  the  domain  of  interstate  commerce,  else  no 
injury  would  be  suffered  by  the  employee  engaged  in  such 
commerce.  In  other  words,  in  every  such  case  the  master, 
through  his  agents,  negligently,  and  hence  unlawfully,  al- 
lows an  obstruction  to  be  placed  in  the  way  of  the  safe 
conduct  of  interstate  commerce,  by  which  the  employee 
engaged  therein  is  injured. 


TO   WHAT    KMin.OYEKS    STATUTK    APrT.TT-:S.  215 

"It  is  suggestive  of  the  weakness  of  the  present  con- 
tention that  no  such  objection  was  ever  made  with  regard 
to  the  original  act  in  the  Employers'  Liability  Cases.  In 
fact,  it  was  practically  conceded  in  those  cases  that  if  the 
statute  could  be  construed  to  limit  the  liability  of  the  carrier 
to  its  emplo3''ees  when  or  while  such  employee  was  engaged 
in  interstate  commerce  it  would  be  constitutional,  so  far 
as  any  objection  of  this  kind  was  concerned.  In  the  present 
statute  Congress  has  imposed  that  limitation.  The  act  does 
not  undertake  to  regulate  the  relations  between  the  carrier 
and  its  employees  who  are  not  engaged  in  interstate  com- 
merce. The  relations  between  the  carrier  and  such  em- 
ployees remain  precisely  the  same  as  if  the  statute  had  not 
been  passed.  No  relief  whatever  is  afforded  them  by  the 
act.  They  only  enter  into  consideration,  as  the  agents  of 
the  carrier,  in  determining  the  liability  between  the  carrier 
and  its  employees  who  suffer  injury  while  employed  in 
interstate  commerce. 

"As  stated,  the  fallacy  of  the  contention  that  the  act  is 
unconstitutional  lies  in  the  assumption  that  the  Congress 
has  in  some  way  regulated  the  relationship  between  the 
carrier  and  its  employees  who  are  not  engaged  in  inter- 
state commerce  at  the  time  of  an  injury  coming  within  the 
terms  of  the  act.  If  the  relations  between  the  carrier  and 
such  employees  are  changed  in  the  slightest  degree  by  the 
act,  it  should  be  a  simple  matter  to  point  out  the  change. 
If  they  are  not  changed,  the  contention  made  is  untenable. 

"It  is  true  the  act  imposes  a  liability  upon  the  carrier 
for  the  negligence  of  its  employees  who  may  not  be  em- 
ployed at  the  time  in  interstate  commerce.  But  the  liability 
imposed  is  to  its  employees  who  suffer  injury  by  reason  of 
such  negligence  at  a  time  when  they  are  employed  in  inter- 
state commerce.  No  duty,  no  liability,  no  responsibility  is 
imposed  upon  the  carrier  with  respect  to  its  employees  who 
may  occasion  such  injury. 

"It  seems  unnecessary  to  carry  this  discussion  further. 
If  Congress  cannot  protect  an  employee  while  he  is  en- 


216  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

gaged  in  interstate  commerce  from  the  negligence  of  the 
railroad  carrier  to  the  extent  provided  in  this  act,  it  is  shorn 
of  the  plenary  power  to  regulate  commerce  that  has  heen 
so  often  asserted."^® 

§  68.  The  Nebraska  statute. — Some  little  light  may  be 
thrown  upon  this  point  by  a  decision  of  the  Supreme  Court 
of  Nebraska  in  construing  a  statute  of  that  state.  An  em- 
ployee of  a  railroad  company  was  a  helper  in  a  blacksmith- 
shop  of  the  company,  and  at  the  time  of  his  injury  was 
assisting  in  flattening  iron  washers  at  a  steam  hammer. 
He  charged  that  his  injuries  were  caused  by  the  careless- 
ness of  the  employee  operating  this  hammer.  These  washers 
were  used  for  repairs  to  cars  and  engines.  The  action  was 
brought  upon  a  statute  of  the  state  which  provided  "that 
every  railway  company  operating  a  railway  engine,  ear,  or 
train  in  the  state  of  Nebraska  shall  be  liable  to  any  of  its 
employees,  who  at  the  time  of  injury  are  engaged  in  con- 
struction or  repair  work,  or  in  the  use  and  operation  of 
any  engine,  car,  or  train  for  said  company."  The  railroad 
company  contended  that  the  employee  plaintiff  was  not 
within  the  class  protected  by  the  statute,  because  he  was 
not  injured  through  a  risk  or  hazard  incident  and  peculiar 
to  the  business  of  constructing,  repairing  and  operating 
railroads ;  but  the  court  pointed  out  the  clause  "or  in  the 
use  and  operation  of  any  engine,  car  or  train  for  said  com- 
pany," as  applicable  to  the  case  and  covering  it,  saying: 

"It  is  clear  from  this  wording  of  the  statute  that  the 
legislature  intended  that  the  fellow-servant  rule  (not  law) 
should  not  apply  to  any  of  the  employees  of  any  railroad 
in  the  state  who  were  either  engaged  in  the  operation  of 
engines,  cars,  or  trains,  or  were  engaged  in  construction  or 
repair  work.  Substantially  the  same  reason  sustains  the 
entire  classification;  that  is  to  say,  there  are  dangers  in- 
herent in  and  peculiar  to  all  the  vocations  described  in  the 

"Quotation  from  briof  of  the  At-  IcSO  Fed.  S32;   Zikos  v.   Oregon  R., 

torney-Goncral  of  the  United  States  etc.,  Co.  179  Fed.  893. 

in  Watson  v.  St.  Louis,  I.  M.  &  So.  Where  an  employee  was  struck  by 

Ry.  Co.  169  Fed.  942.  an  intrastate  car  or  truck  used  for 

The   question    liaa    now   been    do-  interstate   commerce,   while   working 

cided  as  in  the  text  stated.    Pedersen  on  a  switch  mechanism  he  had  just 

V.  Delaware,  L.  &  W.  K.  Co.  229  U.  oiled,  it  was  held  he  was  not  within 

S.  14G;    33  Sup.  Ct.  048;  .')7  L.  Ed.  the  Fedenil  Act.     Granger  v.  Pcnn- 

1125,  reversing  107  Fed.  r).37;  117  C.  sylvania    R.    Co.    84    N.    J.    L.    338; 

C.  A.  .33,  which  afTirrn.'d  184  Fed.  737.  86  Atl.  264.     See  also  Illinois  Cent. 

Second   Empiovcrs'    Liability   Cases,  Ry.    Co.    v.    Rogers,    221    Fed.    52; 

223  U.  S.  1 ;  32  Sup.  Ct.  169;  56  L.  Ed.  Shanley  v.  Philadelphia  &  R.  R.  Co. 

.327;  Central  R.  Co.  v.  Colasurdo,  192  221    Fed.    1012;    Barker    v.    Kansas 

Fed.  901;  113  C.  C.  A.  379,  affirming  City,  M.  &  O.  Ry.  Co.   (Kan.)   146 

Pac.  358. 


TO   WHAT    EMPLOYEES    STATUTE   APPLIES.  HJ 

statute,  which  are  rarely,  if  ever,  encountered  by  employees 
working  for  a  master  not  engaged  in  the  operation  of  a 
railway.  The  legislature  well  knew  that  substantially  all 
railway  construction  or  repair  work  is  dangerous,  per- 
formed either  in  the  immediate  vicinity  of  tracks  upon 
which  trains  are  passing  or  by  the  use  of  dangerous  ma- 
chinery, as  in  the  case  at  bar.  Classifications  should  receive 
a  practical  construction,  and  we  are  of  opinion  that  a  rea- 
sonable application  of  the  law  to  the  facts  in  the  case  before 
us  not  only  brings  the  plaintiff  within  its  purview,  but  for- 
bids a  holding  that  the  law  itself  is  obnoxious  to  the  Con- 
stitution of  the  United  States  or  to  the  Constitution  of  the 
state  of  Nebraska.  We  must  not  be  understood  as  deciding 
that  all  work  of  construction  or  repair  of  any  article  or 
structure  performed  in  the  service  of  a  railroad  company 
comes  within  the  purview  of  the  statute.  The  work  of  a 
railroad  company  is  divided  into  many  departments.  The 
duties  and  hazards  of  employees  in  one  department  may  be 
as  dissimilar  from  those  in  other  departments  as  are  those 
of  a  clerk  or  bookkeeper  in  the  uptown  headquarters  from 
those  of  an  engineer  or  brakeman  on  a  train ;  and  questions 
may  hereafter  arise  as  to  the  scope  of  the  act  under  con- 
sideration, which  we  do  not  now  decide.  But,  where  the 
work  of  construction  or  repair  is  as  closely  connected  with 
the  actual  operation  and  use  of  the  railroad  as  the  work 
of  the  present  plaintiff,  it  seems  clear  that  it  is  within  the 
class  of  hazards  covered  by  the  act.  "^^ 

§  69.  Validity  of  statute  allowing  a  recovery  for  an  in- 
jury occasioned  by  an  intrastate  employee. — The  validity 
of  this  Act  has  been  vigorously  attacked  in  so  far  as  it 
allows  a  recov^ery  for  an  injury  inflicted  upon  an  interstate 
employee  by  the  negligent  act  of  an  intrastate  employee, 
but  so  far  without  avail.  "As  the  powers  of  Congress," 
said  Justice  Trieber,  "are  limited  to  those  granted  by  the 

^"  Swoboda  v.  Union  Pacific  R.  Crandall  v.  Chicago  G.  W.  R.  Co. 
Co.  87  Neb.  200;   127  N.  W.  215;       (Minn.)  150  N.  W.  165. 


118 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


Constitution,  and  the  only  provisions  of  that  instrument 
authorizing  such  legislation  is  the  commerce  clause,  and 
that  is  limited  to  '  commerce  with  foreign  nations  and  among 
the  several  states  and  Indian  tribes,'  it  can,  of  course,  only 
legislate  for  the  safety  of  those  employed  in  those  branches 
of  commerce,  and  not  in  intrastate  carriage.  That  is  all 
the  act  under  consideration  attempts  to  do.  It  is  limited 
to  those  who  are  in  the  employment  of  railroads  engaged 
in  commerce  between  the  state,  and  while  they  are  actually 
engaged  in  such  employment.  What  difference  does  it 
make  what  the  employment  of  the  fellow-servant  is — 
whether  interstate  or  intrastate?  The  safety  of  the  em- 
ployees of  an  interstate  train,  as  well  as  of  the  passengers 
entrusted  to  their  care,  can  in  no  wise  be  affected  by  that. 
Congress  having  the  exclusive  power  to  regulate  interstate 
commerce,  that  power  necessarily  includes  the  right  to 
regulate  the  relation  of  master  and  servant  operating  such 
trains  and  legislate  for  the  safety  of  the  employees.^®  If 
the  contention  of  defendant  is  sustained,  the  effect  would 
be  that  although  the  emploj^ee  of  a  carrier  by  rail  engaged 
in  interstate  transportation  is  injured  while  engaged  on  an 
interstate  train,  if  the  cause  of  the  injury  was  the  negli- 
gence of  a  fellow-servant  not  engaged  at  the  time  in  inter- 
state work.  Congress  is  powerless  to  provide  for  a  recovery 
of  compensation  for  the  injuries  suffered.  Therefore,  if  an 
engineer  or  fireman  on  an  interstate  train  is  injured  by 
reason  of  the  negligence  of  a  switchman  or  other  employee 
of  a  train  operated  on  a  branch  line,  which  is  used  exclu- 
sively for  intrastate  business,  the  failure  of  Congress  to 
except  such  accidents  from  the  provisions  of  the  statute 
makes  it  unconstitutional  as  being  in  excess  of  its  powers 
under  the  Constitution.  The  same  result  would  follow  if  a 
telegraph  operator  on  such  a  branch  line  fails  to  transmit 

•"'8  Citing    Johnson    v.    Southern  Co.  205  U.  S.  1;  27  Sup.  Ct.  407; 

Pacific   Ry.   Co.    1%   U.   S.    1;    25  51  L.  Ed.  681 ;  a.nd  Employers' Lia- 

Sup.     Ct.    158;     49    L.    Ed.    3C3;  bility    Cases,    207    V.    S.'4n8;    28 

Sohlemmer    v.    Buffalo,    etc.,     Ry.  Sup.  Ct.  145;  52  L.  Ed.  297. 


TO   WHAT    EMPLOYEES   STATUTE   APPLIES.  HQ 

or  deliver  a  message  from  the  train  dispatcher  directing 
the  conductor  of  the  interstate  train  to  go  on  a  siding  for 
the  purpose  of  letting  an  intrastate  train  pass  on  the  main 
line,  and  by  reason  of  such  negligence  there  is  a  collision. 
In  State  v.  Chicago,  Milwaukee  &  St.  Paul  R.  Co.,^^  the 
court,  speaking  of  a  similar  question,  said:  'The  direction 
and  dispatching  of  every  train  on  an  interstate  railway 
necessarily  involves  knowledge  in  the  train  dispatcher  of 
all  other  trains  which  are  in  the  same  vicinity  at  the  same 
time,  and  also  an  ability  to  control  such  other  trains.  An 
interstate  train  from  Milwaukee  to  Chicago  cannot  be  safely 
forwarded  if,  under  the  direction  of  a  separate  employee,  a 
local  train  may  be  moving  between  Milwaukee  and  Racine 
over  the  same  track  at  the  same  time,  or  nearly  so.  The 
very  switching  at  local  stations  must  be  within  the  knowl- 
edge and  under  the  control  of  him  who  is  to  decide  upon 
and  direct  the  most  important  of  interstate  transportation. 
Obviously  division  of  authority  over  these  subjects  would 
be  fraught  with  great  perils  and  delays  to  both  kinds  of 
transportation.  Hardly  any  act  of  a  train  dispatcher  on  a 
busy  railroad  can  be  conceived  which  does  not  affect  both 
interstate  and  domestic  commerce.  He  cannot  move  or 
stop  the  most  distinctively  local  train  without  affecting  the 
interstate  train,  or  vice  versa.  No  extra  or  special  can  be 
put  on  the  division  without  adjustment  of  other  trains.  Of 
course,  also,  every  interstate  train  carries  some  purely  intra- 
state freight  or  passengers.  I\Iany  purely  domestic  trains 
carry  some  freight  or  passengers  in  transit  to  extrastate 
destination.  It  would  seem  that  any  severance  of  control 
over  state  from  interstate  trains  involved  so  much  of  con- 
fusion and  probability  of  danger,  and  its  possibility  even  is 
so  doubtful  and  experimental  that  no  legislature  would 
absolutely  precipitate  it  without  careful  consideration,  nor 
without  providing  in  the  act  for  the  event  of  failure  of  such 
experiments.'  There  is  nothing  in  the  Employers'  Liability 
Cases  to  warrant  the  construction  claimed  on  behalf  of  de- 

39  136  Wis.  407;   117  X.  W.  686. 


120  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

f  endant.  What  the  court  did  decide  in  that  case  was  that  as 
the  act  under  consideration  included  all  employees  of  an 
interstate  carrier,  even  if  they  (the  employees)  were  en- 
gaged in  an  employment  wholly  disconnected  from  the 
interstate  business,  citing  'employees  of  a  purely  local 
branch  operated  wholly  within  a  state,  employees  in  repair 
shops,  construction  work,  accounting  and  clerical  work, 
storage  elevators  and  warehouses,  not  to  suggest,  besides, 
the  possibility  of  it  being  engaged  in  other  independent 
enterprise,'  and  then  held  that:  'As  the  act  thus  includes 
many  subjects  wholly  beyond  the  power  to  regulate  com- 
merce and  depends  for  its  sanction  upon  that  authority, 
it  results  that  the  act  is  repugnant  to  the  Constitution.' 
No  doubt  Congress,  had  it  seen  proper  to  do  so,  could  have 
limited  it  to  certain  fellow-servants,  such  as  are  employed 
only  in  interstate  service  or  in  the  same  or  different  depart- 
ments of  the  common  employment,  as  has  been  done  by 
some  of  the  states.  See  acts  of  Arkansas,  Indiana,  Massa- 
chusetts, Mississippi,  Missouri,  Montana,  Ohio,  Oregon, 
South  Carolina,  Texas,  Utah,  and  Virginia.  But  the  failure 
to  do  so  cannot  invalidate  the  act." 

The  court  then  reviews  many  cases  under  like  statutes 
and  concludes  that  "the  act  in  controversy  is  a  valid  exer- 
cise of  the  power  granted  to  Congress  by  the  Constitu- 
tion.'"'^ 


40  Watson  v.  St.  Tjoiiis.  I.  !M.  &  no  such   a  proposition   as   therein 

S.  Ry.  Co.  169  Fed.  942.  laid   down  having  been  argued   in 

In    this    the    court    makes    the  the  briefs: 
follo\ving  quotation  from  the  opin-  "Thus,  the  liability  of  a  common 

ion  of  Justice   White   in  the  Era-  carrier  is  declared  to  be  in  favor 

ployers'  Liability  Cases,  207  U.  S.  of  'any  of  its  employees.'  As  the 

498;    28  Sup.   Ct.   145;   52   L.   Ed.  word 'any' is  unqualified,  it  follows 

297,   and   says   that   the    italicized  that  liability  to  the  servant  is  co- 

fKjrtion    does    not    appear    in    the  extensive    with    the   business    done 

opinion.      It   certainly   appears    in  l)y  the  employers  whom  the  statute 

the  official   report  of  the  opinion.  embraces:    that   is,   it   is   in   favor 

The  court  examined  the  record  of  of    any    of    the    employees    of    all 

the  case  in  which  this  opinion  was  carriers  who  engacrpd  in  interstate 

rendered   and   held  that   the  words  commerce.     This  also  is  the  rule  as 

in  italics  was  a  mere  obiter  dictum,  to  the  one  who  otherimsc  would  he 


TO   WHAT    EMPLOYEES    STATUTE   APPLIES. 


121 


a  felloio  scrvunt,  hy  whose  negli- 
gence the  injury  or  death  may  have 
been  occasioned,  since  it  is  pro- 
vided tJuit  the  right  to  recover  on 
the  part  of  any  servant  will  exist, 
although  the  injury  for  which  the 
carrier  is  to  be  held  resulted  from 
negligence  of  any  of  its  officers, 
agents  or  employees.'" 

The  validity  of  this  act  in  this 
particular  respect  has  been  prac- 
tically upheld  in  Zikos  v.  Oregon 
K.  &  K  Co.  179  Fed.  S93. 

"Xo  doubt  is  suggested  that  the 
requirement  of  safety  appliances  on 
cars  that  are  actually  laden  with 
interstate  traffic  isj  a  regulation  of 
interstate  commerce.  Now,  if  the 
same  interstate  carrier  may  haul 
on  the  same  interstate  highway, 
cars  that  need  not  be  equipped  be- 
cause, though  regularly  used  in 
interstate  traffic,  they  are  empty 
at  the  time  (Wabash  Ry.  Com- 
pany), and  also  cars  that  need  not 
be  equipped  because  they  are  laden 
with  intrastate  traffic  exclusively 
(Elgin  R.  Company),  the  purpose 
of  equipping  the  oars  that  are 
carrying  interstate  traffic  would 
manifestly  be  largely  impaired  or 
destroyed,  for  in  switching  move- 
ments, in  derailments,  and  in  colli- 
sions, disasters  would  come  to  the 
interstate  car  quite  irrespective  of 
the  character  of  the  other  cars  in- 
volved. Therefore,  Congress,  under 
the  power  'to  make  all  laws  which 
shall  be  necessary  and  proper  for 
carrying  into  execution  the  fore- 
going powers  of  regulating  inter- 
state commerce,  had  the  right  to 
make  the  laws  in  question;  and 
they  are  paramount,  of  course,  to  '11 
laws  of  the  state.  This  result, 
which  we  deem  soimd  in  reason, 
is  indirectly  sustained,  we  believe, 
by  the  Employers'  Liability  Cases, 
for  there  the  statute  was  over- 
throA^Ti  only  because  an  inseparable 
part  of  it  was  found  to  have  no 


necessary  relation  to  the  security 
of  interstate  transportation."  Wa- 
bash R.  Co.  V.  United  States,  168 
Fed.  1. 

"Is  the  act  in  excess  of  the  power 
of  Congress  in  that  it  regulates 
such  relation  as  to  intrastate  em- 
ployees by  making  the  carrier 
liable  for  their  negligence  to  inter- 
state employees?" 

Having  determined  that  the  reg- 
ulation of  the  relation  of  master 
and  servant  as  between  an  inter- 
state carrier  and  its  interstate 
employee  is  a  regulation  of  com- 
merce, we  must  answer  the  ques- 
tion as  to  whether  or  not  the  rule 
established  by  the  act  goes  beyond 
the  power  of  Congress  in  that  it 
regulates  such  relation  as  to  intra- 
state employees  by  making  the 
carrier  liable  for  their  negligence 
to  interstate  employees. 

This  act,  properly  construed,  in- 
cludes injuries  suffered  by  a  servant 
while  he  is  employed  in  interstate 
commerce  through  the  negligence 
of  any  of  the  officers,  agents,  or 
employees  of  the  carrier,  whether 
or  not  the  latter  were  employed  in 
such  commerce. 

All  that  the  act  does  in  this 
particular  is  to  regulate  the  rela- 
tion of  a  common  carrier  engaged 
in  interstate  commerce  to  its  em- 
ployee while  engaged  in  such  com- 
merce. In  order  to  protect  the 
interstate  employee  it  imposes  a 
liability  on  the  interstate  carrier. 

It  abolishes  the  common  law 
doctrine  which  forbade  the  re- 
covery of  damages  for  injuries  t-o 
employees  sustained  by  the  negli- 
gence of  fellow  servants.  This  it 
does  only  as  to  employees  engaged 
in  interstate  commerce.  No  change 
is  made  with  respect  to  the  rights 
of  an  intrastate  employee  or  the 
duties  of  a  carrier  to  such  servant. 
It  is  submitted  that  under  the  com- 
merce   clause,    wherever    it    is    a 


122 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


necessary  incident  to  regulation  of 
interstate  commerce,  Oongi-ess  can 
control  intrastate  commerce. 

There  is  only  one  sovereign 
power  over  interstate  commerce — 
the  power  of  Federal  government. 

In  the  exercise  of  this  sovereign 
power,  to  regulate  interstate  oom- 
merce.  Congress  is  absolutely  un- 
trammeled  by  any  rights  of  the 
states,  or  by  any  rights  of  corpora- 
tions derived  from  states.  Anything 
conflicting  with  tlie  Federal  sov- 
ereignty over  interstate  commerce 
must  give  way  to  the  ample  and 
conclusive  power  over  this  subject 
conferred  upon  the  national  gov- 
ernment. No  authority  derived 
from  the  states  can  be  permitted 
to  conflict  with  the  Federal  power. 
When  Congress  acts  upon  any  sub- 
ject relating  to  interstate  com- 
merce, all  state  regulation  of  the 
same  subject  is  suspended  This 
is  true  to  the  same  extent  that 
state  insolvency  laws  are  sus- 
pended while  a  national  bank- 
ruptcy act  is  in  force. 

It  will  be  conceded  that  the 
Federal  power  is  ample  in  bank- 
ruptcy cases  to  affect  purely  local 
transactions  of  merchants,  where 
the  rights  of  creditors  generally 
may  be  affected.  Where  such 
rights  of  general  creditors  are  in- 
volved the  Federal  power  assumes 
the  adjustment  of  relations  arising 
out  of  rights  otherwise  controlled 
exclusively  by  local  law. 

The  same  is  true  when  rights 
otherwise  exclusively  local  come 
into  conflict  with  rights  founded 
on  Federal  laws  regulating  inter- 
state commerce.  In  such  cases  it 
is  essential  that  sucli  local  rights 
be  regulated  in  order  that  inter- 
state regulation  may  be  made  rea- 
sonably effective.  Inherent  in  the 
Federal  sovereignty  over  the  whole 
subjeet  of  interstate  commerce,  and 
essential  to  its  maintenance,  is  the 


power  to  make  any  incidental  rega- 
lation  of  commerce  within  the 
states,  in  cases  in  which  such  in- 
trastate regulation  is  necessary  to 
the  complete,  uniform,  and  orderly 
regulation  of  interstate  commerce. 

This  Federal  power  to  regulate 
local  affairs  exists,  however,  only 
when  incidental  and  only  so  far 
as  reasonably  necessary  to  the 
regulation  of  interstate  commerce. 
This  power,  it  must  be  understood, 
does  not  extend  to  the  regulation 
of  intrastate  commerce,  as  such, 
but  merely  to  such  intrastate  com- 
merce as  is  so  intimately  related 
to  interstate  commerce,  or  so  com- 
mingled with  it,  that  the  latter 
cannot  be  regulated  without 
affecting  the  former.  Intrastate 
commerce  may  be  affected  by  Fed- 
eral laws  relating  to  interstate 
commerce  where  the  latter  power 
could  not  be  reasonably  and  effec- 
tively exercised  -vvithout  so  affect- 
ing the  domestic  power  of  the 
state. 

In  protecting  interstate  em- 
ployees. Congress  can  fix  upon  a 
carrier  liability  for  the  negligence 
of  any  of  its  servants.  Such  negli- 
gence tlien  becomes  the  negligence 
of  the  carrier,  and  it  is  immate- 
rial whether  the  employee  causing 
such  injury  is  engaged  in  intra- 
state or  interstate  commerce.  His 
negligence  is  imputed  to  the  com- 
pany. 

If  Congress  has  the  power  to 
create  certain  rights  in  favor  of 
interstate  employees,  it  can  by 
appropriate  legislation  make  those 
rights  effective.  It  may  if  neces- 
sary invade  the  police  power  of 
the  state. 

Although  it  is  often  said  that 
the  Federal  government  has  no 
police  power  in  itself,  yet  Congress 
may  exercise  police  regulation  ff/r 
the  purpose  of  effecting  powers 
that  belong  to  it.     If  in  regulating 


TO   WHAT    EMPLOYEES    STATUTE   APPLIES. 


123 


commerce  it  becomes  necossaiy  to 
pass  a  law  similar  to  one  passed 
by  a  state  under  its  police  powers, 
Congress  may  do  so. 

In  regulating  this  relation  be- 
tween the  interstate  employee  and 
his  emiployer,  it  is  immaterial 
whether  the  injury  is  caused  by  a 
defective  machine,  another  inter- 
state employee,  or  an  intrastate 
workman.  The  liability  is  from 
the  interstate  employer  to  the  in- 
terstate emiployee.  Congress  may 
so  far  as  the  question  of  power  is 
concerned  ignore  H\e  cause  of  the 
injury. 

Power  over  railroads  is  identical 
with  power  over  maritime  com- 
merce. The  latter  power  has  been 
held  to  extend  to  a  law  limiting 
the  liability  of  ship  owners.  The 
power  to  limit  is  no  greater  than 
the  power  to  extend.  If  Congress 
may,  therefore,  increase  the  liabil- 
ity of  ship  OAvners  for  tlie  perils 
of  the  sea,  why  may  not  legisla- 
tion be  just  asj  constitutionally 
enacted  extending  the  liability  of 
railroads  for  similarly  hazardous 
perils? 

The  imposition  of  this  liability 
upon  a  carrier  has  a  direct  ten- 
dency to  promote  greater  care  and 
diligence  on  the  part  of  the  carrier 
in  complying  with  statutory  as 
well  as  the  common  law  obliga- 
tions for  safety.  The  expression 
of  Judge  Taft  in  Narramore  v. 
Cleveland,  C,  C.  &  St.  L.  Ry.  Co. 
(96  Fed.  2'98,  300),  is  in  "point. 
He  said,  speaking  of  a  statute  of 
Ohio  requiring  railroad  companies 
to  block  the  frogs,  switches,  and 
guard  rails  on  their  tracks,  under 
penalty  of  a  fine  (our  italics)  : 
"*  *  *  Tlie  expression  of  one 
mode  of  enforcing*  it  did  not  ex- 
clude the  operation  of  another,  and 
in  many  respects  more  efficacious, 
means  of  compelling  compliance 
with   its   terms,   to-wit,    the   right 


of  civil  action  against  a  delinquent 
railway  company  by  one  of  the 
class  sought  to  l>e  protected  by  the 
statute  for  injury  caused  by  a  fail- 
ure to  comply  with  its  require- 
ments.    *     *     *." 

Congress  has  here  thrown  the 
cloak  of  protection  over  interstat^e 
em4)loyees.  It  has  given  to  those 
employees  certain  rights  not  pos- 
sessed by  others  not  so  employed. 
It  affords  this  protection  that  they 
may  be  more  diligent  in  trans- 
acting the  bulsdness  committed  to 
them;  that  their  duties  may  be 
performed  more  thoroughly  and 
commerce  thereby  made  more  safe. 

It  is  the  man  that  is  i>rotected 
in  order  that  commerce  may  be 
protected.  This  man  is  the  agent 
by  which  commerce  is  transported. 
And  commerce  is  by  this  legisla- 
tion regulated. 

It  matters  riot  whether  the  cause 
of  the  injury  was  animate  or  in- 
animate, provided  it  be  of  a  nature 
for  which  the  carrier  may  fairly 
be  made  responsible.  Can  it  be 
said  that  Congress  has  the  power 
to  make  the  carrier  liable  for  a 
defective  track,  bridge,  or  car  and 
yet  not  for  its  animate  agent? 
To  state  the  proposition  is  only  to 
demonstrate  its  unsoundness.  Con- 
gress has  said  that  if  the  master 
allows  any  agency  which  enters 
the  domain  of  interstate  commerce 
to  become  an  obstacle  to  the  safety 
of  interstate  employees,  he  cannot 
plead  as  a  defense  the  fellow  serv- 
ant doctrine. 

While  a  servant  of  an  interstate 
road  is  about  his  master's  business 
and  engaged  in  interstate  com- 
merce, he  is  entitled  to  and  within 
the  protection  of  the  congressional 
power.  Tliis  power  reaches  out  to 
him  in  his  every  act  while  per- 
forming his  duty  to  his  employer 
in  the  line  of  interstate  commerce, 
and  Congress  has  placed  upon  the 


124 


FEDERAL,    EMPLOYERS'    LIABILITY    ACT. 


railroad  the  obligation  to  protect 
Mm  wliiie  so  engaged.  If  he  is 
injured  by  the  railroad,  by  any  of 
its  agents  or  instrumentalities 
while  in  the  performance  of  inter- 
state duty,  that  injury  is  the  act 
of  his  interstate  employer,  for 
which  such  employer  may,  accord- 
ing to  every  principle  of  legal 
responsibility,  be  made  ang\verable. 
The  injury  to  him  constitutes  an 
interference  with  interstate  com- 
merce, and  Congress  has  the  power 
to  fix  the  liability  of  the  carrier 
therefor. 

If  an  act  of  an  intrastate  serv- 
ant is  so  directly  connected  with 
interstate  commerce  that  it  injures 
one  who  is  engaged  in  interstate 
commerce,  the  relation  of  the  in- 
trastate servant  to  interstate  com- 
merce is)  so  proximate  as  to  bring 
such  act  within  the  power  of  Con- 
gress  upon  the  subject. 

If  the  servant  of  an  interstate 
railroad,  though  engaged  in  intra- 
state commerce,  comes  into  such 
intimate  relation  with  interstate 
commerce  that  his  negligence  causes 
injury  to  a  servant  of  the  same 
master,  wlio  was  actually  engaged 
at  the  time  in  interstate  commerce, 
his  connection  with  interstate  com- 
merce is  fixed  by  this  act,  and  the 
power  of  Congress  attaches  and  is 
enforced  by  this  statute  in  favor 
of  the  employee  who  meets  with 
such  injury. 

There  can  be  no  objection  to  the 
application  by  Congress  of  the  rule 
of  respondeat  superior  in  making 
an  interstate  railroad  liable  t«  the 
interstate  servant  for  an  injury 
caused  by  a  local  servant. 

The  power  which  regulates  in- 
terstate traffic  extends  to  the  fixing 
of  the  liability  of  the  carrier  to 
the  men  who  move  such  traffic. 
If  the  power  exists  in  Congress  to 
refrulate  the  obligations  of  the 
carrier    for    damage    to    interstate 


freight,  it  ought  not  to  be  mini- 
mized in  aff'ording  a  remedy  for 
injury  to  men  engaged  in  moving 
interstate  traffiic. 

Any  employee  engaged  in  con- 
nection with  interstate  commerce 
is  subject  to  Federal  control.  His 
duties  may  be  prescribed.  His 
qualifications  may  be  fixed.  His 
liabilities  and  those  of  his  master 
may  be  determined  by  Congress. 

That  is  all  that  is  sought  to  be 
accomplished  by  this  act. 

When  a  railroad  is  engaged  in 
interstate  traffic  its  employees  are 
subject  to  Federal  control,  and 
such  regulation  is  necessary.  This 
is  obvious  when  the  facts  as  to 
operation  of  interstate  railroads 
are  carefully  examined. 

Interstate  railroads  are  run  as 
a  unit.  All  the  departments  and 
diivisions  of  such  railroads  are 
closely  correlated  and  intermingled, 
and  it  would  be  unwise  for  the 
court  to  assume  a  segregation 
where,  in  fact,  none  exists.  It 
would  be  a  matter  of  extreme  diffi- 
culty in  an  interstate  railroad  to 
point  out  any  distinct  line  of 
demarcation  between  interstate  and 
intrastate  business.  The  financial! 
aff'airs  of  the  road  are  managed 
as  a  whole.  The  direction  and 
control  of  trains  are  under  one 
head.  The  general  orders  covering 
alJ  operations  of  the  road  come 
from  tlie  same  general  manager. 
Particular  orders  as  to  the  dis- 
patch of  trains  originate  with 
interstate  train  dispatchers.  The 
same  engines,  cars,  and  other  in- 
strumejitalitios  are  indiscriminately 
used  in  interstate  and  intrastate 
business.  The  same  tracks  are 
used  for  both  interstate  and  intra- 
state traffic.  The  most  distinctively 
local  branches  have  physical  con- 
nection with  the  interstate  tracks, 
and  foreign  cars,  loaded  with  in- 
terstate tralBc,   and  trainsi  of  the 


TO   WHAT    EMPLOYEES   STATUTE   APPLIES. 


125 


§70.  Interstate  engineer  of  interstate  railroad  hauling- 
intrastate  train — Going  to  work. — In  a  case  that  arose  in 
the  United  States  Court  for  the  Eastern  District  of  Louis- 
iana, an  extreme  (|uestion  was  presented  in  the  instance 
of  an  injured  engineer,  who  was  a  member  of  a  switching 
crew.  The  crew  moved  both  intrastate  and  interstate  com- 
merce cars.  At  the  time  he  was  injured  the  train  he  was 
hauling  was  composed  of  thirteen  cars,  all  of  which  had 
originated  in  Louisiana,  destined  for  a  point  within  the 
state,  and,  so  far  as  the  freight  was  concerned,  constituted 
intrastate  commerce.    The  railroad  company  contended  that 


road  itself  containing  cars  loaded 
in  whole  or  in  part  with  inter- 
state traffic,  pass  indiscriminately 
over  these  local  divisions. 

At  the  ticket  offices  of  every 
local  branch  of  such  a  railroad 
tickets  are  sold  over  the  entire 
interstate  railroad,  and  also  over 
extra -state  connecting  lines.  Inas- 
much as  interstate  passengers  are 
thus  solicited  and  afterwards  car- 
ried over  such  seenningly  local 
branches,  all  engaged  in  their 
transportation,  and  all  oo-operating 
in  the  maintenance  of  the  track 
for  their  transportation,  are  en- 
gaged in  interstate  commerce. 

Every  local  freight  station  on 
the  line  receives  and  transmits 
freight  for  all  other  stations  on 
the  line,  and  for  points  beyond 
the  state,  and  thus  all  who  co- 
operate in  any  of  the  work  of  the 
receipt  or  transmission  of  such 
freight  are  engaged  in  interstate 
commerce.  All  who  participate  in 
the  maintenance  of  the  instrumen- 
talities for  the  general  use  of  the 
road,  even  in  the  maintenance  of 
such  instrumentalities  as  are  used 
on  purely  local  branches,  neces- 
sarily participate  in  the  work  of 
interstate  commerce,  because  in- 
terstate   commerce    is    carried   on 


over  every  part,  branch,  section, 
and  division  of  the  entire  system 
of  such  interstate  road. 

This  intermingling  of  both  kinds 
of  traffic  makes  necessary  the  adop- 
tion of  some  uniform  system  of 
regulation,  and  the  Supreme  Court 
of  the  United  States  has  repeatedly 
held  that  subjects  of  the  commerce 
power  which  are  in  their  nature 
national  or  admit  only  of  one 
imiform  system  of  regulation  are 
exclusively  within  the  legislative 
power  of  Congress.  Cooley  v.  Tlie 
Board  of  Wardens,  etc.,  12  How. 
299,  319;  13  L.  Ed.  996;  Casie  of 
the  State  Freight  Tax,  15  Wall. 
232,  279;  21  L.  Ed.  146;  reversing 
62  Pa.  286;  1  Am.  Rep.  399; 
Welton  V.  The  State  of  Missouri, 
91  U.  S.  275,  280;  23  L.  Ed.  347; 
reversing  55  INIo.  288;  Cardwell  v. 
American  Bridge  Co.,  113  U.  S. 
205,  210;  5  Sup.  Ct.  423;  28  L. 
Ed.  ^Sg;  affirming  19  Fed.  562: 
9  iSawy.  662;  Bobbins  v.  Shelby 
County  Taxing  District,  120  U.  S. 
489,  492;  7  Sup.  Ct.  592;  30  L. 
Eed.  694;  reversing  13  L.  Ed.  303. 
(From  brief  of  the  Attorney- 
General  of  the  United  States  Jn 
Central  of  Georgia  By.  Co.  v. 
Waldo,  6  Ga.  App.  840;  05  S.  E. 
1098. 

That  an  interstate  employee  may 
recover  for  an  injury  inflicted  by  an 
intrastate  emplovee,  .see  Louisville 
&  N.  R.  Co.  V.  Walker,  162  Ky.  209; 
172  S.  W.  517. 


]Og  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

neither  it  nor  its  deceased  employee  were,  at  the  time,  en- 
gaged in  interstate  commerce,  and  that  there  could  be  no 
recovery  as  against  it  in  the  action.  But  the  court  ruled 
otherwise,  saying : 

"In  my  opinion,  the  construction  sought  to  be  secured  by 
the  defendant  is  entirely  too  narrow  and  restricted.  Un- 
doubtedly the  act  of  Congress  is  in  derogation  of  the 
common  law ;  but  certainly  the  elimination  of  the  doctrine 
of  fellow-servant,  and  the  modification  of  the  doctrine  of 
contributory  negligence,  and  assumed  I'isk,  makes  for  the 
betterment  of  human  rights,  as  opposed  to  those  of  prop- 
erty, and  I  consider  that,  in  the  light  of  modern  thought 
and  opinion,  the  law  should  be  as  broadly  and  as  literally 
construed  as  possible.  In  this  view  of  the  case,  I  consider 
that  the  usual  and  ordinary  employment  of  the  defendant 
in  interstate  commerce,  mingled  though  it  may  be  with 
employment  in  commerce  which  is  wholly  intrastate,  fixes 
his  status,  and  fixes  the  status  of  the  railroad,  and  the 
mere  fact  that  the  accident  occurred  while  he  was  at  work 
on  an  intrastate  train,  rather  than  a  few  minutes  earlier 
or  later,  when  he  might  have  been  employed  on  an  inter- 
state train,  is  immaterial.  If  he  was  engaged  in  two  occu- 
pations that  are  so  blended  as  to  be  inseparable,  and  where 
the  employee  has  no  control  over  his  own  actions,  and 
cannot  elect  as  to  his  employment,  the  court  should  not 
attempt  to  separate  and  distinguish  between  them.  "^ 

The  holding  in  this  case  has  been  referred  to  with  ap- 
proval by  a  United  States  Circuit  Court  of  Appeals,  and  a 
quotation  made  therefrom  with  commendation,  in  an  in- 
stance of  a  fireman  on  an  interstate  railway  company,  going 
under  orders  to  report  at  a  station,  to  be  transported  with 
others  to  another  station,  to  relieve  the  crew  of  an  inter- 
state train,  and  who,  when  approaching  the  station  over  a 
crossing,  was  struck  and  killed,  through  the  negligence  of 

'  Hdirens  v.  Illiiioi.s  Central  R.  Co.  Sep  Illinois  Central  E.  Co.  v.  Behrens, 
102  p-ed.  .581;  Carr  v.  New  York  233  U.  S.  473;  34  Sup.  Ct.  G46;  58 
Cent.  R.  Co.  13G  N.  Y.  Supp.  501.      L.  Ed.  1051. 


TO   WHAT    EMrLOYEKS    STATUTE   APPLIES. 


127 


other  servants  of  the  company,  also  operating  on  an  inter- 
state train,  who  was  held  to  be  engaged  in  ■  interstate 
commerce,  when  injured.^ 


2  Laniphere  v.  Oregon  R.  &  N. 
Co.  I'JO  Fed.  330,  reversing  193 
Fed.  248. 

Tlie  court  denied  the  soundness 
of  Pedersen  v.  Delaware,  L.  & 
W,  R.  Co.   184   Fed.  737. 

A  Pullman  porter  is,  as  to  the 
railroad,  engaged  in  interstate 
commerce.  Oliver  v.  Northern 
Pac.   Ry.   Co.    IOC   Fed.   432. 

A  clerk  in  the  switching  yard, 
taking  the  numbers  of  the  cars  of 
a  freight  train  just  arrived,  is  not 
engaged    in    interstate    commerce. 


St.  Louis,  S.  F.  &  T.  Rv.  Co.  v. 
I^ale  (Tex.  Civ.  App.),  148  S.  W. 
1099. 

An  employee  of  an  intrastate 
railway  company,  engaged  in  the 
preparation  of  ice  for  use  in  pas- 
senger cars  carrying  interstate  pas- 
sengers, is  engaged  in  interstate 
commerce,  and  hence  the  com- 
pany's liability  to  him  for  per- 
sonal injuries,  received  while  in 
the  work,  is  governed  by  the  Fed- 
eral statute.  Freeman  v.  Powell 
(Tex.  Civ.  App.),  144  S.  W.  10.33. 


CHAPTER  V 


CONTRIBUTORY  AND  COMPARATIVE  NEGLIGENCE. 


SECTION 

71.  Contributory  negligence — Stat- 
ute. 

Contributory  negligence  as  a 
defense. 

Contributory  negligence  de- 
fined. 

Common  law  rule  of  contrib- 
utory negligence  preventing 
a  recovery. 

Definitions  of  degrees  of  neg- 
ligence. 

Comparative  negligence. 

Origin  of  rule  of  comparative 
negligence. 

Georgia  statutes. 

Differs    from    Federal    statute. 

Georgia  statutes  construed. 

Contributory  negligence  of  plain- 
tiff before  defendant's  neg- 
ligence began. 

Burden  on  plaintiff  to  show  free- 
dom from  his  own  fault. 

Charge  to  ]\iry  under  Georgia 
Code. 

Recovery  by  a  railway  employee. 

Widow  recovering  for  death  of 
her  husband — Georgia  statute 
— Contributory  negligence  of 
deceased. 

Apportionment  of  damages. 

An  epitome  of  Georgia  cases. 

Comparative  negligence  in  Illi- 
nois. 

Negligence  a  relative  term. 

Illinois  rule  extended. 

Ordinary  care  wanting — Plain- 
tiff's negligence  slight. 


72. 
73. 

74. 


75. 

76. 


78. 
79. 
80. 
81. 


82. 

83. 

84. 
85. 


86. 
87. 
88. 

89. 
90. 
91. 


SECTION 

92.     Want  of  ordinary  care  defeats 
a  recover}'. 
Failure  to  exercise  ordinary'  care 
more    than    slight    negligence. 
Ordinary   and   slight   negligence 

in  their  popular  sense. 
Mere  preponderance  of  de- 
fendant's negligence  not  suf- 
ficient— Defendant's  clearly 
exceeding  plaintiff's  negli- 
gence. 
Gross     and     slight     negligence 

distinguished. 
Plaintiff's    neghgence    must    be 
compared    with    that    of    de- 
fendant. 
Plaintiff's    negligence   compared 

with  defendant's. 
Willful    injury   by   defendant — 
Slight   negligence  of  plaintiff. 
Mere   preponderance   of   negli- 
gence  against   defendant   not 
sufficient. 
Jury  must   compare  the  negli- 
gence  of   the  defendant  with 
that  of  the  plaintiff. 
Instructions  must  require  com- 
parison. 
Illustration — Engine      striking 

hand  car — Unlawful  speed. 
Illustration — Mail  crane  strik- 
ing fireman. 
Admiralty    suits  —  Apportion- 
ment of  damages. 
Origin  of  admiralty  rule. 
Rule  in  admiralty  commended. 
Difficulty  of  apportioning  dam- 
ages. 


93. 
94. 


95. 


98. 
99. 
100. 


101. 


102. 

103. 

104. 

105. 

106. 
107. 
108. 


128 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ^29 


109.  Assumption  of  risk.  115.     Court    telling    jury    particular 

110.  Contributory    negligence    does  acts    constitute    contributory 

not     prevent     a     recovery —  negligence. 

How     damages     are     appor-  116.     Rules    of    contributory    negli- 

tioned.  gence  must  be  considered. 

111.  Negligence   of   plaintiff   neces-  117.     Injury  occasioned  by  defendant 

sary  to   concur  with  defend-  having  violated  a  safety  device 

ant's  to   produce   the   injury.  statute. 

112.  Court  cannot  lay  down  exact  118.     Presenting  the  defense  of  con- 

rules    for    apportionment    of  tributory  negligence — Burden, 

damages.  119.     When   contributory   negligence 

113.  Statute    does    not    adopt    the  does    not   diminish    damages. 

theory  of  slight,  ordinary  and  120.     Examples      under      Wisconsin 

gross  negligence.  statute. 

114.  Directing     the     verdict — Due  121.     Practice  under  Wisconsin  stat- 

care.  ute. 


§  71.  Contributory  negligence — Statute. — Section  3,  of 
the  statute  provides  as  follows:  "That  in  all  actions  here- 
after brought  against  any  such  common  carrier  by  railroad 
under  or  by  virtue  of  any  of  the  provisions  of  this  act  to 
recover  damages  for  personal  injuries  to  an  employe,  or 
where  such  injuries  have  resulted  in  his  death,  the  fact  that 
the  employe  may  have  been  guilty  of  contributory  negligence 
shall  not  bar  a  recovery,  but  the  damages  shall  be  diminished 
by  the  jury  in  proportion  to  the  amount  of  negligence  at- 
tributable to  such  employe :  Provided,  That  no  such  employe 
who  may  be  injured  or  killed  shall  be  held  to  have  been 
guilty  of  contributory  negligence  in  any  case  where  the 
violation  by  such  common  carrier  of  any  statute  enacted  for 
the  safety  of  employes  contributed  to  the  injury  or  death  of 
such  employe."  ^ 

1  Section  3  of  statute.     St.  Louis  lating  the  relations  of  master  and 

S.  W.  Ry.  Co.  V.  Anderson  (Ark.)  173  servant.      It    is    pretty    well    con- 

S.W.834     Sections  3  and  4  fall  within  ceded  that  those  sections  are  con- 

a  class  of  legislation  findmg  Its  au-  constitutional.       Kelly     v.      Great 

tnority  m  the  exercise  of  a  reasonable  >'     .i  t>      r^      i^;^  t-.   i    ^,i 

police  power  by  the  legislature  in  regu-  ^«rthern  Ry.  Co.   152  Fed.  211. 


130 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


§  72.  Contributory  negligence  as  a  defense. — A  careful 
reading  of  this  section  will  show  that  contributorv"  negli- 
gence is  no  longer  a  complete  defense  as  it  was  at  the  com- 
mon law,  but  is  still  a  partial  defense.  As  a  complete  de- 
fense all  the  rules  of  the  common  law  are  erased  at  one 
sweep  of  the  legislative  pen;  and  although  an  employe  is 
guilty  of  contributory  negligence  he  may  still  recover.  But 
those  rules  are  still  in  force  for  the  purpose  of  determining 
the  quantum  of  damages  the  employe  may  recover ;  for  what- 
ever at  common  law  was  contributory  negligence  is  stiil  to 
be  considered  in  determining  the  relative  amount  of  the 
employe 's  negligence  as  compared  with  that  of  the  employer.* 

The  statute  does  not  change  the  nor  is  such  a  recoven-  barred,  even 
law  as  to  what  is  contributory  negli-  though  the  injured  one  contributed 
gence,  but  merely  changes  its  legal  by  his  own  negligence  to  his  injury, 
effect  upon  the  issue  as  to  damages.  The  amount  of  the  recovery,  how- 
Rains  V.  Southern  Ry.  Co.  (N.  C.)  ever,  is  diminished  in  the  same  degree 
85  S.  E.  294.  that   the    neghgence   of   the   injured 

*  The  statute  "permits  a  recovery  one   contributed   to   the   injury.      It 

by  an  employee  for  an  injury  caused  makes    each    party    responsible    for 

by  the  neghgence  of  a  coemployee;  his    own     negligence,     and    requires 


CONTRIBUTORY    AND    COMPARATlVii:    NEGLIGENCE.       l^l 

^  73.  Contributory  neglig-ence  defined. — Iii  South  Caro- 
lina the  following  definition  of  contributory  negligence  has 
been  given:  "Contributory  negligence  is  the  want  of  ordi- 
nary care  on  the  part  of  the  person  injured  by  the  action- 
able negligence  of  another,  combining  and  concurring  with 
that  negligence,  and  contributing  to  the  injury  as  a  proxi- 
mate cause  thereof,  without  which  the  injury  would  not 
have  occurred." ^ 

§  74.  Common  law  rule  of  contributory  negligence  pre- 
venting a  recovery, — The  common  law  rule  of  contributory 
negligence  which  prevents  plaintiff  recovering  damages  has 
been  very  succinctly  stated  by  the  New  Jersey  Supreme 
Court  as  follows :  "In  this  state  the  established  rule  is  that 
if  the  plaintiff's  negligence  contributed  to  the  injury,  so 
that,  if  he  had  not  been  negligent,  he  would  have  received 
no  injury  from  the  defendant's  negligence — the  plaintiff's 
negligence  being  proximately  a  cause  of  the  injury — he  is 
without  redress,   unless   the   defendant's   act   was  a   willful 

each  to  beat-  the  burden  thereof."  lous    situation    that    a    passenger 

60   Cong.   Rec,   1st  Sess.,  p.   4434.  pays   his  fare,   and   if  he   contrib- 

See  Appendix  B.  utes  to  his  own  injury,  he  cannot 

"It  appears  to  me  that  two  em-  recover,  while  two  employees  paid 

ployees,      by      slight      negligence,  to    conduct    him    safely    may    by 

might  bring  on   an  accident   that  their     negligence     cause      an     ac- 

would  kill   50  or    100  passengers;  cident  and  kill  many  persons,  and 

that    they    would    contribute    the  yet    they    can    recover."      Senator 

negligence   that   produced   the    ac-  Smith,  of  Michigan.  Ibid,  p.  4535. 

cident,  and  they  would  recover  for  'Cooper  v.  Ry.  Co.  5G  S.  C.  91; 

their  own  negligence.     That  is  ab-  34  S.  E.  16:   approved  in  Webster 

solutely  true,  if  I  understand  the  v.  Atlantic,   etc.,   R.   Co.   81   S.   C. 

bill,  and  we  do  not  want  to  pass  46;  61  S.  E.  1080;  Charleston  &  W.  C. 

such  a  bill.     It  almost  puts  a  pre-  %•  Co.  v.  Sylvester  (Ga.  App.)  80 

mium    upon    a    conspiracy    among  f;  ^,-  P,^/  ^^^*^J  Y,-  Virginian  Ry. 

,  ,      ,  -ij.        e  T  ^o.  (W.  Va.)  8b  b.  111.  o7. 

employees    to   be    guilty   of   negli-  ^his  statute  cannot  be  so  turned 

gence  that  they   can   take   ad  van-  around   as   to   give   an   employee   a 

tage   of  their  own  negligence   and  right  of  action  because  of  his  own 

kill     a     hundred     people     besides.  contributory  negligence,  on  the  theory 

That    is    the    effect    of    the    bill."  that    his    own    negligence,    resulting 

Senator  Elkins,  of  West  Virginia.  ^^..^'^  '"JU^y-  '«  ^^^  negligence  of  the 

.„    „  „         T  i.   o  ^coA  railroad  company.     Such  a  construe- 

60  Cong.   Rec,   1st  Sess.,   p.  4534.  ^-^^  ^^^^^  ^^  J  absurdity. 
"It    suggests    the    very    anoma- 


132  FEDERAL   EMPLOYERS'    LLVBILITY    ACT. 

trespass,  or  amounted  to  an  intentional  wrong,  and  in  such 
a  ease  the  comparative  degree  of  negligence  of  the  parties 
will  not  be  considered.*'  In  the  trial  of  cases  of  this  kind/ 
where  it  appears  that  both  parties  were  in  fault,  the  primary 
consideration  is  that  whether  the  faulty  act  of  the  plaintiff 
was  so  remote  from  the  injury  as  not  to  be  regarded,  in  a 
large  sense,  as  a  cause  of  the  accident,  or  whether  the  injury 
was  proximately  due  to  the  plaintiff's  negligence,  as  well  as 
to  the  negligence  of  the  defendant.  If  the  faulty  act  of  the 
plaintiff  simply  presents  the  condition  under  which  the  in- 
jury was  received,  and  was  not,  in  a  legal  sense,  a  con- 
tributory cause  thereof,  then  the  sole  question  will  be  whether, 
under  the  circumstances,  and  in  the  situation  in  which  the 
injury  was  received,  it  was  due  to  the  defendant's  negligence. 
But  if  the  plaintiff's  negligence  proximately — that  is,  di- 
rectly— contributed  to  the  injury,  it  will  disentitle  him  to  a 
recovery,  unless  the  defendant's  wrongful  act  was  willful,  or 
amounted  to  an  intentional  \vrong.  A  court  of  law  cannot 
undertake  to  apportion  the  damages  arising  from  an  injury 
caused  by  the  co-operating  negligence  of  both  parties,  or  to 
determine  the  comparative  negligence  of  each. ' '  "^ 

§  75.  Definitions  of  degrees  of  negligence.— In  an  early 
day  the  Supreme  Court  of  Kansas  adopted  the  rule  of  com- 
parative negligence,  and  in  discussing  the  law  of  negligence 
the  court  gave  the  following  definitions  and  made  the  fol- 
lowing observations:  "There  may  be  a  high  degree  of  dili- 
gence, a  common  degree  of  diligence,  and  a  slight  degree  of 
diligence,  with  their  corresponding  degrees  of  negligence, 
and  these  can  be  clearly  enough  defined  for  all  practical  pur- 
poses, and,  with  a  view  to  the  business  of  life,  seems  to  be 
all  that  are  really  necessary.     Common  or  ordinary  diligence 

•  Citing  New  .Jersey  Exp.  Co.  v.  earelessly    into   a    transit   or    sur- 

Nichols,   33   N.   J.    L.   435;    Penn-  veyor's    compass    standing    in    the 

sylvania  R.  Co.  v.  Righter,  42  N.  liighway. 

J.   L     180.  "     State   v.   Lauer,   55   N.   J.   L. 

'Driving    a    team     and    wagon  205;  2G  Atl.  180;  20  L.  R.  A.  61. 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ^^33 

is  that  degree  of  diligence  which  men  in  general  exercise  in 
respect  to  their  own  concerns;  high  or  great  diligence  is,  of 
course,  extraordinary  diligence,  or  that  which  very  prudent 
persons  take  of  their  own  concerns;  and  low  or  slight  dili- 
gence is  that  which  persons  of  less  than  common  prudence, 
or,  indeed,  of  any  prudence  at  all,  take  of  their  own  con- 
cerns. Ordinary  negligence  is  the  want  of  ordinary  dili- 
gence ;  slight,  or  less  than  ordinary  negligence,  is  the  want 
of  great  diligence;  and  gross  or  more  than  ordinary  negli- 
gence is  the  want  of  slight  diligence.  *  *  *  Whoever 
exercises  slight  care,  and  no  more,  is  guilty  of  ordinary 
negligence;  whoever  exercises  less  than  slight  care  is  guilty 
of  gross  negligence,  and  may  be  guilty  of  willful  and  wanton 
wrongs.  Whoever  exercises  great  care  is  guilty  of  less  than 
slight  negligence,  and  may  not  be  guilty  of  any  negligence 
at  all."« 

§  76.  Comparative  negligence. — The  provisions  of  sec- 
tion 3  radically  change  the  common  law  rule,  and  it  is 
said  to  have  introduced  the  rule  of  comparative  negligence, 
especially  as  administered  in  the  state  of  Georgia.  That  is 
true  in  a  measure.  If  the  employee  has  been  guilty  of  negli- 
gence in  contributing  to  his  injuries,  then,  under  this  Fed- 
eral statute,  his  negligence  must  be  compared  with  that 
of  his  employer  in  determining  the  measure  of  his  damages, 
and  to  that  extent  the  statute  has  introduced  the  rule  of 
comparative  negligence,  but  in  a  modified  condition  as  will 
appear  in  subsequent  sections. 

§  77.  Origin  of  rule  of  comparative  negligence. — In  Illi- 
nois comparative  negligence  was  first  announced  in  1858  by 
Justice  Breese  after  a  careful  consideration  of  several  Eng- 
lish cases.^°    The  rule  of  comparative  negligence  was  enforced 

0  Union  Pacific  Ry.   Co.   v.   Rol-  Atchison,  etc..  R.  Co.  v.  Henry,  57 

lins,  5  Kan.  167;  Sawver  v.  Saner,  Kan.  154;  Neil  v.  Idaho  &  W.  N.  R. 

10  Kan.  4<i6;   Kansas  Pacific   Ry.  Co.  22  Idaho  74;  125  Pac.  331. 

Co.  V.  Pointer,  14  Kan.  37:  Kansas  >»  Galena,  etc.,  R.  Co.  v.  Jacobs, 

E.   Co.   V.    Plovey,   29    Kan.    169;  20  111.478. 


134  FEDERAL   EMPLOYERS'    LLVBILITY    ACT. 

in  that  state,  with  many  vicissitudes,  until  the  common  law 
rule  of  contributory  negligence  was  finally  adopted,  thereby 
overruling  a  long  line  of  cases,  establishing  a  doctrine  with 
many  refinements,  and  which,  judging  from  the  many  errors 
pointed  out  in  the  supreme  and  appellate  courts  of  that 
state,  were  never  fully  understood  by  all  the  nisi  prius 
judges  and  members  of  the  bar  of  that  state/^  In  the  early 
decisions  of  Kansas  the  rule  also  prevailed  where  the  negli- 
gence of  the  injured  person  was  slight  and  that  of  the  cul- 
pable individual  gross  in  comparison.^-  In  that  state,  how- 
ever, the  rule  has  been  abrogated.^"  In  Georgia  the  rule 
was  adopted  at  an  early  day,  perhaps  not  in  the  same  sense 
as  the  Illinois  rule,  but  with  so  slight  a  distinction  as  to 
result  in  practice  to  little  difference."  In  one  case  it  is  said 
that  the  rule  adopted  in  that  state  is  the  rule  that  prevails 
in  admiralty.^^  The  several  decisions  of  the  Georgia  Su- 
preme Court  resulted  in  the  productions  of  three  sections 
of  the  code  of  that  state,  varying  in  their  terms  as  applied 
to  different  conditions  under  which  the  injuries  were  in- 
flicted. 

§  78.    Georgia  statutes.— The  following  are   the  sections 
of  the  Georgia  code  from  which  some  of  the  provisions  of 

"Tliat   tlio   rule  nf   comparative  1!)1;    Union   Pac.   Ry.   Co.   v.   Rol- 

negligencc    is   no    longer    in   force,  lins,  5  Kan.  167;  Sawyer  v.  Sauer, 

see     Pennsylvania     Coal     Co.     v.  10  Kan.  466. 

Kelly,   15G   111.  9;    40   N.   E.   Rep.  "Atchison,      etc.,      R.      Co.      v. 

938;    City    of    Lanark    v.    Dougli-  Henry,  57  Kan.  154;  45  Pac.  Rep. 

erty,   153  111.   163;   38  N.   E.   Rep.  576. 

892 ;    Cicero,   etc.,    St.   Ry.    Co.   v.  '*  For  origin  of  rule,  see  Macon, 

Meixner,    160   111.    320;    43   N.    E.  etc.,  R.  Co.  v.  Denis,  18  Ga.  684; 

823;   31   L.  R.  A.  331;   Cleveland,  Central,   etc.,   R.   Co.  v.   Denis,   19 

etc.,    Ry.    Co.   v.   Maxwell,   59    111.  Ga.    437;    Macon,    etc.,    R.    Co.   v. 

App.   673;    Atchison,  etc.,  Ry.  Co.  Davis,  28  Ga.  Ill;  Macon,  etc.,  R. 

V.  Feehan,   149  111.  202;   36  N.  E.  Co.   v.  .Johnson,  38  Ga.   409,  431; 

Rep.    1030;    Illinois,    etc.,    R.    Co.  Central   R.  Co.  v.   Brinson,  70  Ga. 

V.  Ashline,  56  111.  App.  475;  Calu-  207. 

met,    etc.,    Co.    v.    Nolan,    69    111.  "^IMacon,   e-tc,    R.    Co.   v.   Winn, 

App.  104.  20    Ga.   250;    see   Macon,   etc.,    R. 

"Caullrins   v.   Mathews,   5  Kan.  Co.  v.  Johnson,   38   Ga.   409,   432. 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ^^35 

the  Federal  Employers'  Liability  Act  were  drawn:  "No 
person  shall  recover  damages  from  a  railroad  company  for 
injury  to  himself  or  his  property  where  the  same  is  done 
by  his  consent,  or  is  caused  by  his  own  negligence.  If  the 
complainant  and  the  agents  of  the  company  are  both  at  fault, 
the  former  may  recover,  but  the  damages  shall  be  diminished 
by  the  jury  in  proportion  to  the  amount  of  default  at- 
tributable to  him. "^"  "If  the  person  injured  is  himself  an 
employe  of  the  railroad  company,  and  the  damage  was 
caused  by  another  employe,  and  without  fault  or  negligence 
on  the  part  of  the  person  injured,  his  employment  by  the 
company  shall  be  no  bar  to  the  recovery. "^^  "If  the  plain- 
tiff by  ordinary  care  could  have  avoided  the  consequences 
to  himself  caused  by  the  defendant's  negligence,  he  is  not 
entitled  to  recover.  But  in  other  cases  the  defendant  is  not 
relieved,  although  the  plaintiff  may  in  some  way  have  con- 
tributed to  the  injury  sustained."  ^^ 

§  79.  Differs  from  Federal  statute. — Read  together  these 
three  sections  of  the  Georgia  Code  differ  to  some  extent  in  the 
rule  they  set  forth  from  that  adopted  in  the  Federal  stat- 
ute. Thus,  the  latter  statute  does  not  require  in  any  of 
its  provisions  that  the  plaintiff  must  have  been  in  the 
exercise  of  due  care  or  any  care,  but  in  Section  3830  of  the 
former  if  he  "by  ordinary  care  could  have  avoided  the  con- 
sequences to  himself  caused  by  the  defendant's  negligence, 
he  is  not  entitled  to  recover.  But  in  other  eases  the  defend- 
ant is  not  relieved,  although  the  plaintiff  may  in  some  way 

"Georgia  Code,  1895,  Sec.  2322.  abrogated;  but  tbe  injured  em- 
It  will  be  noted  that  by  this  sec-  ployee  must  be  free  from  negli- 
tion  negligence  of  the  injured  per-  gence  contributing  to  his  injury, 
son  contributing  to  the  injury  Under  this  section  if  the  ser- 
will  not  bar  a  recovery,  but  will  vant  injured  was  himself  at  fault, 
reduce  the  amount  he  would  oth-  he  cannot  recover ;  nor  can  the 
erwise  be  entitled  to  recover.  damages  under  this  section  be  ap- 

"  Georgia  Code,  1895,  Sec.  2323.  portioned.      East    Tennessee,    etc.. 

In    this    section    it   will    be    noted  R.  Co.  v.  Maloy,  77  Ga.  237. 

that  the  comnicn  law  rule  of  the  « Georgia  Code,  1895,  Sec.  3830. 
negligence   of  a   fellow   servant  is 


136  FEDERAL   EMPLOYERS'    LLVBILITY    ACT. 

have  contributed  to  the  injury  sustained."  Section  2322  de- 
clares that  the  plaintiff  shall  not  recover  when  the  injury  to 
himself  "is  caused  by  his  own  negligence,"  and  then  adds 
that  if  he  and  the  agents  of  the  railway  company  be  both  at 
fault,  he  may  recover,  the  damages  to  be  diminished  by  the 
jury  "in  proportion  to  the  amount  of  default  attributable 
to  him."  In  the  section  abrogating  the  fellow  servant  rule 
(Section  2323)  where  he  is  injured  by  a  fellow  servant,  he 
must  be  "without  fault  or  negligence."  It  may  be  well  to 
consider  the  construction  the  Georgia  Supreme  Court  has 
put  upon  these  three  sections  when  taken  together.^^* 

§  80.  Georgia  statutes  construed. — After  quoting  the 
three  sections  of  the  Georgia  code,  the  Supreme  Court  of 
that  state  put  this  construction  upon  them:  "It  will  be 
seen  that,  although  the  presumption  is  always  against  the 
[railroad]  company,  yet  it  may  rebut  that  presumption  and 
relieve  itself  of  damages  by  showing  that  [1]  its  agents  have 
exercised  all  ordinary  and  reasonable  care  and  diligence  to 
avoid  the  injury,  or  [2]  it  may  show  that  the  damage  was 
caused  by  the  plaintiff's  own  negligence;  or  [3]  it  may  show 
that  the  plaintiff  by  ordinary  care,  could  have  avoided  the 
injury  to  himself,  although  caused  by  the  defendant's  negli- 
gence. Upon  either  of  these  grounds  the  defendant  may 
rest  his  defense.  But  these  rules  of  law  will  not  cover  the 
facts  of  every  case,  for  it  may  be  that  both  the  plaintiff  and 
the  agents  of  defendant  are  at  fault,  and  when  they  are, 
then,  whilst  damages  may  be  recovered,  they  are  to  be  dimin- 
ished by  the  jury  in  proportion  to  the  default  of  the  plaintiff 
for  his  want  of  ordinary  care  in  avoiding  the  injury  to 
himself."  ^®  In  this  same  case,  in  a  concurring  opinion,  it  is 
said:  "Where  one  causes  the  injurj'  by  going  where  he  had 
no  excuse  to  go,  as  one  of  ordinary  sense,  as  under  a  car 
in  motion,  or  consents  to  it  by  lying  down  deliberately  on 

I  ft*  It    should    bo.    olj!«rv(Hl    tliat  ("nasi    Line  11.  Co.  57   Fla.   143:   49 

the  (doctrine  of  comparative  nogii-  .So.  745. 

gen<;f!    dofs    not   apply    in    (Joorgia  ^^  Central  R.  Co.  v.  Brinson,  CA 

as  betwof-n  a  railway  company  and  Ga.  47!l;  approved,  Savannah,  etc., 

its     ciiployop.       Thin     is     clearly  E.    Co.    v.    Stewart,    71    Ga.    427; 

p<jinted  out  in  a   Florida  decision,  Ge<^>rgia,    etc.,    R.    Oo.    v.    Thomas, 

Duval    V.    Hunt,    34    Fla.    85:     15  C8  (;a.  744. 
So.    876,    and    Ryland    v.    Atlantic 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ^37 

the  track  and  being  nm  over,  and  in  such  cases  as  these, 
Section  3034  -"  applies,  because  his  consent  or  his  own  negli- 
gence was  the  sole  cause  of  the  injury  to  his  person.  But 
where  one  is  on  a  track,  walking  along,  though  a  trespasser 
in  one  sense  of*  the  word,  yet  entitled  to  protection  as  a 
human  being,  and  a  train  of  cars  comes  rushing  on  toward 
him,  and  the  danger  is  impending,  but  by  ordinary  care  he 
can  step  off  and  save  himself  from  the  consequences  of  the 
negligence  of  the  conductor  in  running  out  of  time,  then  Sec- 
tion 2972  ^^  applies ;  and  if  he  does  not  step  off,  he  cannot 
recover.  It  must  be  borne  in  mind  that  both  the  principles 
of  defense  in  Section  2972  and  in  3034  are  qualified  in  [these] 
sections  respectively.  The  qualification  in  Section  2972  is  this : 
'But  in  other  cases  the  defendant  is  not  relieved,  although 
the  plaintiff  may  in  some  way  have  contributed  to  the  in- 
jury sustained ' ;  and  the  qualification  in  Section  3034  is :  'If 
the  complainant  and  the  agents  of  the  company  are  both  at 
fault,  the  former  may  recover,  but  the  damages  shall  be 
diminished  by  the  jury  in  proportion  to  the  amount  of  the  de- 
fault attributable  to  him.'  Both  contain  the  doctrine  of 
contributory  negligence  and  the  effect  of  it.  That  effect  is 
more  plainly  marked  in  Section  3034  than  in  Section  2972. 
yet  is  seen  in  each.  In  Section  3034  the  meaning  is  that 
where  the  negligence  of  the  complainant  is  the  sole  cause, 
he  cannot  recover  at  all;  if  it  be  in  part  the  cause  and  negli- 
gence of  the  company  in  part  the  cause,  then  he  may  recover 
in  part.  In  Section  2972  the  meaning  is  substantially  the 
same,  as  applicable  to  the  danger  impending.  Though  the 
plaintiff  may  have  contributed  in  some  way  to  the  peril 
impending — 'the  injury  sustained'  by  him  in  consequence 
of   it — yet  he   may  recover,   if   he   could  not,   by   ordinary 

*  "No  person  shall  recover  dam-  ^  "If  tlie  plaintiff,  by  ordinary- 
ages  from  a  railroad  company  for  care,  could  have  avoided  tlie  con- 
injury  to  himself  or  property  sequences  to  himself  caused  by  the 
where  the  same  is  done  by  his  con-  defendant's  negligence,  he  is  not 
sent  or  is  caused  by  his  own  neg-  entitled  to  recover."  Sec.  2972  is 
ligence:"  Sec.  3034  is  now  Sec.  now  Sec.  3830. 
2322. 


138  FEDERAL   EMPLOYERS'    LLVBILITY    ACT. 

care,  have  got  out  of  the  peril  and  escaped  the  injury. 
Recover  what?  And  the  company  'relieved  to  what  extent?' 
Certainly  to  the  extent  of  plainiff's  contributory  blame  the 
company  is  relieved,  and  the  plaintiff  may  recover  damages 
less  the  just  apportionment  or  proportionment  of  his  own 
contributory  fault."--  "Construing  those  three  sections  in 
pari  materia,  as  one  law,  relating  to  injuries  done  to  per- 
sons b}^  railroads,  the  obvious  meaning  is  that  the  company 
shall  be  liable  for  injuries  done  by  their  agents,  in  running 
trains  or  otherwise,  in  their  service  and  employment,  but 
when  the  person  injured  is  wholly  at  fault,  even  if  not 
himself  an  employe,  he  shall  recover  nothing;  if  partly 
at  fault,  he  shall  recover  less  than  full  damages,  to 
be  fixed  by  a  jury;  if  an  employe,  he  must  be  blameless  to 
recover  at  all,  but  if  blameless,  the  fact  that  he  is  a  servant 
of  the  company  shall  not  bar  his  recovery."-'^ 

§  81.  Contributory  negligence  of  plaintiff  before  defend- 
ant's negligence  began.— In  Georgia,  under  the  Code,  the 
plaintiff's  negligence  which  contributes  to  the  injury  and 
which  bars  a  recovery  must  be  such  negligence  of  his  as 
arises  after  the  negligence  of  the  defendant  began  or  was 
existing,  to  the  plaintiff's  knowledge.  "A  party  cannot  be 
charged  with  the  duty  of  using  any  degree  of  care  or  dili- 
gence to  avoid  the  negligence  of  a  wrongdoer  until  he  has 
reason  to  apprehend  the  existence  of  such  negligence.  No 
one  can  be  expected  to  guard  against  what  he  does  not  see 
and  cannot  foretell.  The  rule,  therefore,  which  requires  one 
to  exercise  care  and  diligence  to  avoid  the  consequences  of 
another's  negligence,  necessarily  applies  to  a  case  where  there 
is  opportunity  of  exercising  this  diligence  after  the  negli- 
gence  has  begun   and  has  become   apparent."-*     The   rule 

"=■  Savannah,     etc.,     R.     Co.     v.  '-^  Macon,  etc.,  Ry.  Co.  v.  Holmes, 

Stewart,  71   Ca.  427.  103    Ua.    658;    30    S.   E.    563;    Co- 

==' Thompson    v.    Central    R.    Co.  mer  v.   Barfield,   102   Ga.   489;    34 

54    Ga.    501);    Central    Ry.    Co.    v.  S.  E.  90;   Savannah,  etc.,  Ry.  Co. 

Brinson,    70    Ga.    207;    Savannah,  v.    Day,    91    Ga.    076;     17    S.    E. 

etc.,  R.  Co.  V.  Stewart,  71  Gu.  427.  959;    Central,   etc.,   R.   Co.   v.   At- 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ][39 

has  thus  been  stated:  "The  duty  imposed  by  law  upon  all 
persons  to  exercise  ordinary  care  to  avoid  the  consequences 
of  another's  negligence  does  not  arise  until  the  negligence 
of  such  other  is  existing,  and  is  either  apparent,  or  the  cir- 
cumstances are  such  that  an  ordinarily  prudent  person  would 
have  reason  to  apprehend  its  existence.  In  such  cases,  and 
in  such  cases  only,  does  the  failure  to  exercise  ordinary  care 
to  escape  the  consequences  of  negligence  entirely  defeat  a 
recovery.  In  other  cases  (that  is,  where  the  person  injured 
by  the  negligence  of  another  is  at  fault  himself,  in  that  he 
did  not,  before  the  negligence  of  the  other  became  apparent, 
or  before  the  time  arrived  when,  as  an  ordinarily  prudent  per- 
son, it  should  have  appeared  to  him  that  there  was  reason  to 
apprehend  its  existence,  observe  that  amount  of  care  and 
diligence  which  would  be  necessary  under  like  circumstances 
by  an  ordinarily  prudent  person),  such  fault  or  failure  to 
exercise  due  care  or  diligence  at  such  time  would  not  entirely 
preclude  a  recovery,  but  would  authorize  the  jury  to  diminish 
the  damages  'in  proportion  to  the  amount  of  default  at- 
tributable' to  the  person  injured.  "This  rule  [of  compara- 
tive negligence]  authorizes  a  recovery  by  the  plaintiff, 
although  he  was  at  fault,  provided  he  was  injured  under 
circumstances  where,  by  the  exercise  of  care  on  his  part, 
he  could  not  have  avoided  the  consequences  of  the  defend- 
ant's negligence.  If  the  plaintiff  knows  of  the  defendant's 
negligence,  and  fails  to  exercise  that  care  and  caution  which 
an  ordinarily  prudent  man  w^ould  exercise  under  similar  cir- 
cumstances to  prevent  an  injury  which  will  result  from  such 
negligence,  it  is  well  settled  he  cannot  recover.  If  the  negli- 
gence of  the  defendant  was  existing  at  the  time  that  plaintiff 
was  hurt,  and  he,  in  the  exercise  of  that  degree  of  care  and 
caution  which  an  ordinarily  prudent  person  would  exercise 
under  similar  circumstances,  could  have  discovered  the  de- 


taway,  90  Ga.  661;   16  S.  E.  956;       wick,  etc.,  R.  Co.  v.  Gibson,  97  Ga. 
Americus,  etc.,  Ry.  Co.  v.  Luckie,       497;  25  S.  E.  484. 
87    Ga.   6;    13   S.   E.    105;    Bruns- 


140  FEDERAL   EMPLOYERS'    LLVBILITY   ACT, 

fendant's  negligence,  and  when  discovered  could,  by  the 
exercise  of  a  like  degree  of  care,  have  avoided  the  same,  then 
he  cannot  recover.  If  at  the  time  of  the  injury  an  ordinarily 
prudent  person,  in  the  exercise  of  that  degree  of  care  and 
caution  which  such  a  person  generally  uses,  would  rea- 
sonably have  apprehended  that  the  defendant  might  be  negli- 
gence at  the  time  when,  and  place  where  the  injury  occurred, 
and,  so  apprehending  the  probability  of  the  existence  of 
such  negligence,  could  have  taken  steps  to  have  prevented  the 
injury,  then  the  person  injured  cannot  recover,  if  he  failed 
to  exercise  that  degree  of  care  and  caution  usually  exercised 
by  an  ordinarily  prudent  person  to  ascertain  whether  the 
negligence  which  might  have  been  reasonably  apprehended 
really  existed.  If  there  is  anything  present  at  the  time 
and  place  which  would  cause  an  ordinarily  prudent  person 
to  reasonably'  apprehend  the  probability,  even  if  not  the  pos- 
sibility, of  danger  to  him  in  doing  an  act  which  he  is  about 
to  perform,  then  he  must  take  such  steps  as  an  ordinarily 
prudent  person  would  take  to  ascertain  whether  such  danger 
exists,  as  well  as  to  avoid  the  consequences  of  the  same  after 
its  existence  is  ascertained;  and  if  he  fails  to  do  this,  and  is 
injured,'^  he  will  not  be  allowed  to  recover,  if  by  taking 
proper  precautions  he  could  have  avoided  the  consequences 
of  the  negligence  of  the  person  inflicting  the  injury."^" 

§  82.  Burden  on  plcintii-  to  show  freedom  from  his  own 
fault.  — In  all  the  Illinois  cases,  the  burden  is  upon  the  plain- 
tiff to  show  his  freedom  from  fault  contributing  to  the  in- 

=»  Because  of  such  failure.  jf  tlie  plaintiff  fails  to  observe 
=*  Western,  etc.,  Ry.  Co.  v.  Fer-  ordinary  care  after  discovering  his 
guson,  113  Ga.  708;  30  S.  E.  306;  d;in<:er  and  the  negligence  of  the 
Freeman  v.  Nashville,  etc.,  Ry.  defendant,  the  doctrine  of  compara- 
Co.  120  Ga.  469;  47  S.  E.  931;  tive  negligence  is  said  not  to  apply. 
Western,  etc.,  Ry.  Co.  v.  York,  Moore  v.  Gainsvillc  Midland  Ry. 
128  Ga.  687;  58  S.  E.  Rep.  183;  Co.  9  Ga.  App.  490;  71  S.  E.  808; 
Athinta,  etc.,  Ry.  Co.  v.  Gardner,  Atlanta.  K.  &  N.  Ky.  Co.  v.  Gard- 
122  Ga  82;  49  S.  E.  Rep.  H18.  m>r,  1L>2  Chi.  S2;  49  S.  E.  818;  War- 
In  ease  of  a  want<;n  injury,  con-  field   v.   Hiinburn,   9   Ga.   App.   321; 

tributory  negligence  is  no  defense       '  ^'r'..  i.  x    ^  r     w-  ^u    •   •      a 

.,,•'.      ^.°   ,,  „       /•  If  "somewhat  at  fault     the  injured 

m  Ge<.rgia.     b<jutl.ern   Ry    Co.   v.       ^^.^^^^^   ^^^^^   ^^^^^^.^^    j^^^  ^^^  if  ^^ 

Wiley,  9  Ga.  App.  249;  71  h.  h.  II;       f,^i,,.,j  ^^  ^^^  ordinarv  care.    Wrip;hts- 
Central  of  GcorKia  Uy.  Co.  v.  Moore,       ^.j,,^.  ^^  ^    ^^    (.^^   v.  Tompkins,  9  Ga. 
r,  Ga.  App.  502;  O.'i  S^  1'..  (.12;  A\  ar-       ^         ^^.j    -y  g    ^   y^^ 
field    v.    Sanhurn,    9   Ga.    App.    321;  " 

71  S.  E.  703. 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ]^4]^ 

jury,  although  some  negligence  on  his  part  will  not  defeat  him. 
"In  all  those  eases, "'^  says  the  Supreme  Court  of  that  state, 
"this  court  held,  in  Jacob's  case,^*  that  two  things  must  con- 
cur to  support  this  action,  negligence  on  the  part  of  the 
defendant,  and  no  want  of  ordinary  care  on  the  part  of  the 
plaintiff,  and  the  question  of  liability  does  not  absolutely 
depend  on  the  absence  of  all  negligence  on  the  j)art  of  the 
plaintiff,  but  upon  the  relative  degree  or  want  of  care  as 
manifested  by  both  parties. ' '  -^ 

§  83.  Charge  to  jury  under  Georgia  Code. — The  follow- 
ing instruction  to  the  jury  was  held  to  be  erroneous:  "If, 
by  the  exercise  of  ordinary  care  and  diligence,  the  plaintiff 
could  have  avoided  the  consequences  to  herself  of  the  de- 
fendant's negligence,  she  cannot  recover;  but  if  both  parties 
were  at  fault,  and  the  alleged  injury  was  the  result  of  the 
fault  of  both,  then,  notwithstanding  the  plaintiff's  negli- 
gence, she  would  be  entitled  to  recover,  but  the  amount  of 
the  recovery  would  be  abated  in  proportion  to  the  amount 
of  the  default  on  her  part."  The  error  consisted  in  stating, 
without  proper  explanation  and  in  immediate  connection  with 
each  other,  two  distinct  rules  of  law,  and  thus  qualifying  the 
former  by  the  latter,  contrary  to  the  purpose  of  the  Georgia 
code.  But  the  Supreme  Court  said  that  the  following  in- 
struction would  be  correct:  "If,  by  the  exercise  of  ordinary 
care  and  diligence,  the  plaintiff  could  have  avoided  the  con- 
sequences to  herself  of  the  defendant's  negligence,  she  cannot 
recover;  but  if  both  parties  were  at  fault,  and  the  alleged 
injury  was  the  result  of  the  fault  of  both,  and  you  find  from 
the  evidence  that  the  plaintiff  could  not  by  ordinary  care 
have  avoided  the  alleged  injury  to  herself,  occasioned  by 
defendant's  negligence,  then,  notwithstanding  she  may  have 
been  to  some  extent  negligent,  she  would  be  entitled  to  re- 
cover. But  the  amount  of  damages  should  be  apportioned  to 
the  amount  of  the  default  on  her  part.  "^'^ 

27 Galena,    etc.,    R.    Co.   v.    Yor-  "Chicago,  etc.,   R.   Co.  v,  Haz- 

wood,  15  111.  469;   Galena,  etc.,  Jc.  zard,  26  111.  373. 

Co.    V.    Fay,    16    111.    567;    Galena.,  s"  Americus,    etc.,    R.    v.    Luckie, 

etc.,  R.  Co.  V.  Jacobs,  20  111.  485.  87    Ga.   6;    13    S.   E.    105;    Bruns- 

*  Galena,  etc.,  R.  Co.  v.  Jacobs,  wick,   etc.,    R.    Co.   v.    Gibson,    97 

20  111.   478.  Ga.    489;    25   S.   E.   484;    Cain   v. 


142  FEDERAL   EMPLOYERS'    LLVBILITY    ACT. 

§  84.  Recovery  by  a  railway  employe.— Speaking  of  the 
deceased's  acts  for  whose  death  an  action  had  been  brought 
to  recover  damages,  the  Supreme  Court  of  Georgia  said: 
"He  was  an  employe  of  the  road.  It  is  to  be  presumed, 
therefore,  that  he  well  knew  that  the  platform  on  which  he 
was,  when  killed,  was  a  place  of  extra  danger.  In  addition 
to  this  he  was  told  by  the  conductor  that  the  place  was  one 
of  danger,  that  he  w^as  violating  a  rule  of  the  road,  and  that 
he  must  come  inside.  This  he  disregarded  and  was  killed, 
whilst  another  young  man,  who  was  with  him,  heeded  it, 
went  inside  the  car,  and  escaped  unhurt.  Ought  he,  or  those 
standing  in  his  right,  under  such  circumstances,  to  recover 
full  damages,  to  recover  as  much  as  if  he  had  been  guilty 
of  no  negligence  himself?  We  think  not.  We  will  not  under- 
take to  say  how  much  such  conduct  as  this  ought  to  reduce 
the  recovery,  but  we  will  say  that  it  ought  to  reduce  it 
much.  ""^ 

§  85.  Widow  recovering  for  death  of  her  husband- 
Georgia  statute — Contributory  negligence  of  deceased. — In 

Georgia  a  statute  allows  a  recovery  by  a  widow  for  the  death 
of  her  husband  if  the  death  was  caused  by  the  negligence  of 
the  defendant,  and  the  injury  was  occasioned  "without  fault 
or  negligence  on  the  part  of  the  person  injured."^-  In  con- 
struing this  clause  the  Supreme  Court  of  that  state  says: 
"If  the  deceased  immediately  or  remotely,  directly  or  indi- 
rectly, caused  the  injury,  or  any  part  of  it,  or  contributed  to 
it  at  all,  his  wife  could  not  recover."  ^^ 

Macon,  etc.,  R.  Co.   97    Ga.   298;  «=  Georgia  Civil  Code,  Sec.  2323. 

22  S.  E.  918;  Macon,  etc.,  Ry.  Co.  ^  Praither  v.   Richmond,  etc.,   R. 

V.  Holmes,  103  Ga.  G55;   30  S.  E.  Co.  80  Ga.  427;    9   S.   E.  530;    12 

563.  Am.    St.    Rep.    2G3;    approved    in 

*^Youge  V.  Kinney,  28  Ga.   Ill;  Western,   etc.,  R.  Co.  v.  Herndon, 

Macon,  etc.,  R.  Co.  v.  Johnson,  38  114  Ga.  168;  39  S.  E.  911;   Black- 

Ga.    409;    Hendricks    v.    Western,  stone  v.  Central   Ry.   Co.   102  Ga. 

etc.,    R.   Co.    52    Ga.    467;    Soutli-  489;   31   S.  E.  90;   Chattanooga  S. 

western  R.  Co.  v.  Johnson,  CO  Ga.  R.  Co.  v.  Myers,  112  Ga.  237;   37 

667.  Ga.  439;   Walker  v.  Atlanta,  etc., 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ][43 

§  86.  Apportionment  of  damages.— In  commenting  upon 
the  apportionment  of  damages  according  to  the  fault  of  the 
parties,  the  Supreme  Court  of  Georgia  said:  "If  the  plain- 
tiff neither  consented  to,  nor  caused  the  injury,  care  and 
diligence  of  the  company's  agents  must  be  shown  to  have 
been  ordinary  and  reasonable.  No  less  degree  will  suffice  for 
complete  exoneration.  If  that  degree  cannot  be  established, 
the  plaintiff  must  recover  something,  and  the  question  will  be 
whether  his  recovery  can  be  reduced  to  partial  compensation 
only.  But  one  thing  will  so  reduce  it,  and  that  is  proof  of 
contributory  negligence  on  his  part.  For  the  same  reason 
that  recovery  is  wholly  defeated  when  his  negligence  is  shown 
to  have  been  the  sole  cause  of  the  injury,  it  will  be  defeated 
in  part  when  his  negligence  is  shown  to  have  been  part  of 
the  cause.  However  slight  it  will  count  against  him,  and 
though  the  company  be  chargeable  with  something,  he,  on 
the  other  hand,  must  lose  something.  For  the  apportionment 
of  damages  according  to  the  relative  fault  of  the  parties, 
there  seems  to  be  no  standard  more  definite  than  the  en- 
lightened opinion  of  the  jury.  But  it  should  not  be  over- 
looked that  the  defendant  is  not  to  be  deemed  in  .fault  at 
all,  unless  there  was  a  failure  to  exercise  ordinary  care  or 
reasonable  diligence.  For  simply  falling  short  of  extreme 
and  ordinary  care  and  diligence,  the  defendant  is  not  liable, 
even   to   contribute."^*      But   "for  simply   falling  short    of 

R.  Co.  103  Ga.  826;  30  S.  E.  503;  plaintiff.     Central   R.  Co.  v.   3rin- 

Georgia,  etc.,  R.   Co.  v.  Hicks,  95  son,  64  Ga.  475;   Atlanta,  etc.,  R. 

Ga.   301;   22    S.   E.   613;    Georgia,  Co.  v.  Wyly,  65  Ga.  120;   Georgia 

etc.,    R.    Co.    V.    Hallman,   97    Ga.  R.  v.  Pittman,  73  Ga.  325;   Bruns- 

317;  23  S.  E.  73;  G€orgia,  etc.,  R.  wick,   etc.,    R.    Co.   v.    Hoover,    74 

Co.  V.  Hicks,  95  Ga.  302 ;  22  S.  E.  Ga.  426 :    Augusta,  etc.,  R.  Co.  v. 

613.  Killian,  79  Ga.  236;    4  S.  E.   164; 

**  Georgia,  etc.,  Co.  v.  NeeW.  5tj  Southern  Cotton  Oil   Co.  v.   Skip- 

Ga.   580:   Atlanta,   etc.,  R.   Co.   v.  per,   125   Ga.   368;    54   S.   E.   Rep. 

Ayers.  53  Ga.   12.  110;  Hill  v.  Callahan,  82  Ga.  113; 

If  both   plaintiff  and   defendant  8    S.   E.    Rep.   730;    Pierce   v.   At- 

are  at  fault,   the  damages   are  to  lanta   Cotton   Mills,    79   Ga.    782; 

be    diminished    in    proportion    to  4    S.    E.    Rep.    381;    Ingraham    v. 

the     fault     attributable     to     the  Hilton,  etc.,  Co.   108  Ga.   194;   33 


144 


FEDERAL    EMPLOYERS      LLVBILITY    ACT. 


extreme  and  extraordinary  care  and  diligence,  the  defendant 
is  not  liable  even  to  contribute. "  ^^  "If  the  plaintiff,  by  the 
exercise  of  ordinary  care,  could  have  avoided  the  conse- 
quences to  himself  of  the  defendant's  negligence,  he  cannot 
recover  at  all.  But  in  other  cases  (that  is,  in  cases  where, 
by  ordinary  care,  he  could  not  have  avoided  the  consequences 
of  defendant's  negligence),  the  circumstances  that  the  plain- 
tiff may  have,  in  some  way,  contributed  to  the  injury,  shall 
not  entirely  relieve  the  defendant,  but  the  damages  shall  be 
apportioned  according  to  the  amount  of  the  default  at- 
tributable to  each.  "2*^ 

§  87.  An  epitome  of  the  Georgia  cases. — The  following  is 
an  epitome  of  the  Georgia  cases :  The  plaintiff  must  have 
used  ordinary  care  to  avoid  the  injury;""  the  burden  is  upon 


S.  E.  Rep.  961;  Glaze  v.  Jose- 
phine Mills,  119  Ga.  261;  46 
S.  E.  Rep.  99;  Wrightsville,  etc., 
Co.  V.  Gornite,  129  Ga.  204;  58 
S.  E.  Rep.  769. 

"For  the  apportionment  of  dam- 
ages according  to  the  relative 
fault  of  the  parties,  there  seems 
to  be  no  standard  more  definite 
than  the  enlightened  opinion  of 
the  jury."  Georgia,  etc.,  Co.  v. 
Neely,  56  Ga.  540. 

"Georgia,  etc.,  Co.  v.  Neely,  56 
Ga.   540. 

^  Macon,  otc,  R.  Co.  v.  .John- 
son, 38  Ga.  409;  Youge  v.  Kinney, 
28  Ga.  111.  Alabama,  etc.,  R.  Co. 
V.  Coggins,  88  Fed.  Rep.  455;  32 
C.  C.  A.  1. 

■"Branan  v.  May,  17  Ga.  136; 
Macon,  etc.,  Ry.  Co.  v.  Winn,  19 
Ga.  440;  Macon,  etc.,  R.  Co.  v. 
Johnson,  38  Ga.  409,  431;  Mayor, 
etc.,  V.  Dodd,  58  Ga.  238;  Georgia 
R.  Co.  V.  Thomas,  68  Ga.  744; 
Augusta,  etc.,  R.  Co.  v.  Killian, 
79  Ga.  236;    4  S.   E.   164;   Ameri- 


cus,  etc.,  R.  Co.  V.  Luckie,  87  Ga. 
7;  13  S.  E.  105;  Central  R.  Co. 
V.  Attaway,  90  Ga.  65;  16  S.  E. 
Rep.  956;  Brunswick,  etc.,  R.  Co. 
V.  Gibson,  97  Ga.  497;  25  S.  E. 
Rep.  484;  Central  R.  Co.  v.  Atta- 
way, 90  Ga.  661;  16  S.  E.  958; 
Comer  v.  Barfield,  102  Ga.  489; 
31  S.  E.  Rep.  90;  Georgia,  etc., 
R.  Co.  V.  Nilus,  83  Ga.  70;  9 
S.  E.  Rep.  1049;  Macon,  etc.,  R. 
Co.  V.  Holmes,  103  Ga.  658;  30 
S.  E.  Rep.  565;  Jenkins  v.  Cen- 
tral R.  Co.  89  Ga.  756;  15  S.  E. 
Rep.  655;  Atlanta,  etc.,  R.  Co.  v. 
Loftin,  86  Ga.  43;  12  S.  E.  Rep. 
186;  Western,  etc.,  R.  Co.  v. 
Bloomingdale,  74  Ga.  604;  Lovier 
V.  Central,  etc.,  R.  Co.  71  Ga. 
222;  Higgins  v.  Cherokee  R.  Co. 
73  Ga.  149;  Tift  v.  .Tones,  78  Ga. 
700;  3  S.  E.  Rep.  399;  Richmond, 
etc.,  R.  Co.  V.  Howard.  79  Ga.  44; 
3  S.  E.  Rep.  426;  Comer  v.  Shaw, 
98  Ga.  545;  25  S.  E.  Rep.  733; 
Briscoe  v.  Southern  Ry.  Co.  103 
Ga.  224;   28  S.  E.  Rep.  638;  Cen- 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       3^45 

him  to  show   that  fact.^*     The   duty   to   use   ordinary  care 
does  not  arise  until  the  negligence  of  the  defendant  is  ex- 


tral  Ry.  Co.  v.  Dorscy,  10(5  Ga. 
826;  32  S.  E.  Rep.  873;  Hopkins 
V.  Southern  Ry.  Co.  110  Ga.  167; 
35  S.  E.  Rep.  170;  Western,  etc., 
R.  Co.  V.  Bradford,  113  Ga.  276; 

38  S.  E.  Rep.  823;  Georgia  Cot- 
ton Oil  Co.  V.  Jackson,  112  Ga. 
620;  37  S.  E.  Rep.  873;  Western, 
etc.,  R.  Co.  V.  Ferguson,  113  Ga. 
708;  39  S.  E.  Rep.  306;  Porter 
V.  Ocean  S.  S.  Co.   113  Ga.   1007; 

39  S.  E.  Rep.  470;  Louisville,  etc., 
R.  Co.  V.  Thompson,  113  Ga.  983; 
39  S.  E.  Rep.  483;  Western,  etc., 
R.   Co.  V.  Herndon,   114   Ga.   168; 

39  S.  E.  Rep.  911;  Roberts  v.  Al- 
bany,   etc.,    R.    Co.    114    Ga.    678; 

40  S.  E.  Rep.  698;  Mansfield  v. 
Richardson,  118  Ga.  250;  45  S.  E. 
269;  Savannah,  etc.,  Ry.  Co.  v. 
Hatcher,  118  Ga.  273;  45  S.  E. 
Rep.  239;  Central  Ry.  Co.  v.  Mc- 
Kinney,  118  Ga.  535;  45  S.  E. 
Rep.  430;  Wilkins  v.  Grant,  118 
Ga.  522;  45  S.  E.  Rep.  415; 
Wrightsville,  etc.,  R.  Co.  v.  Latti- 
more,  118  Ga.  581;  45  S.  E.  453; 
Ludd  v.  Wilkins,  118  Ga.  525;  45 
S.  E.  Rep.  429;  Edwards  v.  Cen- 
tral, etc.,  R.  Co.  118  Ga.  678;  45 
S.  E.  Rep.  462:  Southern  Ry.  Co. 
V.  Gore.  128  Ga.  627;  58  S.  E. 
Rep.  180;  Central  Ry.  v.  McClif- 
ford,  120  Ga.  90;  47  S.  E.  Rep. 
590;  Little  v.  Southern  Ry.  Co. 
120  Ga.  347;  47  S.  E.  Rep.  953; 
Griffith  v.  Lexington,  etc..  Ry.  Co. 
124  Ga.  553:  53  S.  E.  Rep.  97; 
Moore  v.  C.  L.  King  ]\Ifg.  Co.  124 
Ga.  570:  53  S.  E.  Rep.  107;  Col- 
lins V.  Southern  Ry.  Co.  124  Ga. 
853;  53  S.  E.  Rep.  388:  Central 
Ry.  Co.  V.  Harper,  124  Ga.  836; 
53   S.  E.  Rep.   391;   Southern  Ry. 


Co.  V.  Brown,  126  Ga.  1;  54  S.  E. 
Rep.  911;  Cawood  v.  Chattahoo- 
chee, 126  Ga.  159;  54  S.  E.  Rep. 
944;  Wrightsville,  etc.,  R.  Co.  v. 
Gornto,  129  Ga.  204;  58  S.  E. 
769;  City  of  Americus  v.  John- 
son, 2  Ga.  App.  378;  58  S.  E. 
Rep.  518;  Southern  Ry.  Co.  v. 
Gladner  (Ga.  App.),  58  S.  E. 
Rep.  249;  Vinson  v.  Willingham 
Cotton  Mills,  2  Ga.  App.  53;  58 
S.  E.  Rep.  413;  Southern  Ry.  Co. 
v.  Rowe,  2  Ga.  App.  557 ;  59  S.  E. 
Rep.  462;  Rollestone  v.  T.  Gassier 
&  Co.,  3  Ga.  App.  161;  59  S.  E. 
Rep.  442;  Central  Georgia  Ry. 
Co.  v.  Clay,  3  Ga.  App.  286;  59 
S.  E.  Rep.  843;  Southern  Ry.  Co. 
v.  Monchett,  3  Ga.  App.  266;  59 
S.  E.  Rep.  710;  Sanders  v.  Cen- 
tral Ry.  Co.  123  Ga.  763;  50  S. 
E.  Rep.  728. 

^Denol  V.  Central  Ry.  Co.  119 
Ga.  246 ;  46  S.  E.  Rep.  107 ;  Eagle, 
etc.,  Mills  V.  Herron,  119  Ga. 
389;  46  S.  E.  Rep.  405;  Macon, 
etc.,  Ry.  Co.  v.  McLendon,  119  Ga. 
297;  46  S.  E.  Rep.  106;  Russell 
v.  Central  Ry.  119  Ga.  705;  46 
S.  E.  Rep.  858;  Columbus  R.  Co. 
V.  Dorsey,  119  Ga.  363;  46  S.  E. 
Rep.  635;  Simmons  v.  Seaboard, 
etc.,  R.  Co.  120  Ga.  225;  47  S.  E. 
Rep.  570;  Christian  v.  Macon,  etc., 
Co.  120  Ga.  314;  47  S.  E.  Rep. 
23;  Southern  Ry.  Co.  v.  Bandy. 
120  Ga.  403;  47  S.  E.  Rep.  923; 
Banks  v.  J.  S.  Schofield  Sons'  Co. 
126  Ga.  667;  55  S.  E.  Rep.  39; 
Atlanta,  etc..  R.  Co.  v.  O'Neil.  127 
Ga.  085:  56  S.  E.  Rep.  986:  Tur- 
ley  v.  Atlanta,  etc.,  R.  Co.  127  Ga. 
594;  56  S.  E.  Rep.  748;  Roque- 
more  v.  Albany,   etc.,   R.   Co.    127 


146 


FEDERAL   EMPLOYERS'    LIABILITY    ACT. 


isting  or  is  apparent,  or  circumstances  are  such  that  an 
ordinarily  prudent  person  would  have  reason  to  apprehend 
its  existence.2^  And  in  case  of  negligence  on  the  part  of 
both  parties,  the  plaintiff  may  still  recover  if  the  defend- 
ant's was  great.-"'  If  the  defendant  has  been  grossly  negligent, 
the  statute  does  not  apply .^'  If  both  parties  had  equal  oppor- 
tunity to  avoid  the  injury,  no  question  of  apportionment  of 


Ga.  330;  56  S.  E.  Rep.  424;  Moore 
V.  Dublin  Cotton  Mills,  127  Ga. 
609;  56  S.  B.  Rep.  839;  Southern 
Ry.  Co.  V.  Dean  (Ga.),  57  S.  E. 
Rep.  702;  Brown  Store  Co.  v. 
Chattahoochee,  1  Ga.  App.  609; 
57  S.  E.  Rep.  1043;  Sanders  v. 
Central  Ry.  Co.  123  Ga.  763;  50 
S.  E.  Rep.'  728;  Richmond  R.  Co. 
V.  Mitchell,  92  Ga.  77;  18  S.  E. 
Rep.  290;  Savannah,  etc.,  Co.  v. 
Bell,  124  Ga.  663;  53  S.  E.  Rep. 
109;  City  of  Atlanta  v.  Harper, 
129  Ga.  415;  59  S.  E.  Rep.  230. 

**  Freeman  v.  Nashville,  etc., 
Ry.  Co.  120  Ga.  469;  47  S.  E. 
Rep.  931;  Western,  etc.,  Ry.  Co. 
V.  York,  128  Ga.  687;  58  S.  E. 
Rep.  183. 

The  following  instruction  has 
been  approved  by  the  Georgia 
court.  "If  the  plaintiff,  by  ordi- 
nary care,  could  have  avoided  the 
consequence  to  himself  caused  by 
the  defendant's  negligence  (if  the 
evidence  shows  negligence  on  the 
part  of  the  dofendant),  the  plain- 
tiff will  not  be  entitled  to  recover. 
But  if  the  plaintiff  did  use  ordi- 
nary care,  and  if  wliile  in  the  use 
thereof,  by  reason  of  the  defend- 
ant's negligence,  he  sustained  in- 
jury, the  defendant  will  not  lie 
relieved,  although  the  plaintiff 
in  Home  way  may  have  contrib- 
uted   to    the    injury    sustained." 


Mayor,  etc.,  v.  Dodd,  58  Ga.  238; 
Macon,  etc.,  R.  Co.  v.  Davis,  18 
Ga.  679. 

■^  Younge  v.  Kenney,  28  Ga.  111. 
In  this  case  it  was  said:  "The  de- 
ceased may  have  been  guilty  of 
some  negligence;  this  does  not  ex- 
cuse the  railroad,  if  they  [the 
jury]  believe  the  officers  were 
greatly  more  at  fault  than  the  de- 
ceased." 

''Although  the  plaintiff  be  some- 
what in  fault,  yet  if  the  defendant 
be  grossly  negligent,  and  thereby 
occasioned  or  did  not  prevent  the 
mischief,  the  action  may  be  main- 
tained." Augusta,  etc.,  R.  Co.  v. 
McElmurry,  24  Ga.  75;  Macon, 
etc.,  Ry.  Co.  v.  Davis,  18  Ga.  679; 
Brannan  v.  May,  17  Ga.  136;  Ma- 
con, etc.,  R.  Co.  V.  Winn,  19  Ga. 
440. 

"Central,  etc.,  R.  Co.  v.  Smith, 
78  Ga.  694 ;  3  S.  E.  Rep.  397 ;  Cen- 
tral R.  Co.  V.  Dixon,  42  Ga.  327; 
Southwestern  R.  Co.  v.  Johnson, 
60  Ga.  667:  Atlanta,  etc.,  Ry.  Co. 
V.  Avers,  53  Ga.  12.  It  defeats 
the  action  only  when  it  amounts 
to  a  failure  to  use  ordinary  care. 
Rolleston  v.  T.  Gassier  &  Co.  3 
Ga.  App.  161:  59  S.  E.  Rep.  442; 
Sims  V.  ]\Iacon.  etc.,  Ry.  Co.  28 
Ga.  93.  See  Brown  Store  Co.  v. 
Chattahoochee  Lumber  Co.  121  Ga. 
809;  49  S.  E.  Rep.  839. 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       1^'J 

damages  arises/-  "For  simply  falling  short  of  extreme  and 
extraordinary  care  and  diligence,  the  defendant  is  not  liable 
even  to  contribute."*^ 


"  Stewart  v.  Seaboard  Air  Line 
Ry.  115  Ga.  624;  41  S.  E.  Rep. 
981 ;  Wriglitsville,  etc.,  R.  Co.  v. 
Gornton,  129  Ga.  204;  58  S.  E. 
Rep.  709;  Central  Ry.  Co.  v.  Mc- 
Kinney,  IIG  Ga.  13;  42  S.  E.  Rep. 
229;  Hobbs  v.  Bowie,  121  Ga.  421; 
49  S.  E.  Rep.  285. 

If  the  injury  is  occasioned  by 
the  injured  servant  violating  his 
master's  orders,  he  cannot  recover. 
Binion  v.  Georgia,  etc.,  R.  Co. 
118  Ga.  282;  45  S.  E.  Rep.  276. 

That  there  can  be  no  recovery 
where  the  plaintiff  is  guilty  of 
contributory  negligence,  see  Louis- 
ville, etc.,  R.  Co.  V.  Edmondson, 
128  Ga.  478;  57  S.  E.  Rep.  877; 
Southern  Ry.  Co.  v.  Barfield,  115 
Ga.  724;  42  S.  E.  Rep.  95;  Nich- 
ols V.  Tanner,  117  Ga.  489;  43 
S.  E.  Rep.  489;  Georgia,  etc.,  Co. 
V.  Henderson,  117  Ga.  480;  43 
S.  E.  Rep.  698;  NorfolI<,  etc.,  Ry. 
Co.  V.  Perrow,  101  Va.  345;  43 
S.  E.  Rep.  614;  Chenoll  v.  Palmer 
Brick  Co.  117  Ga.  106;  43  S.  E. 
Rep.  443 ;  Steinhouser  v.  Savan- 
nah, etc.,  R.  Co.  118  Ga.  195;  44 
S.  E.  Rep.  800;  McDonnell  v. 
Central  R.  Co.  118  Ga.  195;  44 
S.  E.  Rep.  800;  McDonnell  v.  Cen- 
tral R.  Co.  118  Ga.  86;  44  S.  E. 
Rep.  840;  Augusta,  etc.,  R.  Co.  v. 
Snider,  118  Ga.  146;  44  S.  E. 
1005 ;  Randolph  v.  Brunswick,  etc., 
Ry.  Co.  120  Ga.  969;  48  S.  E.  Rep. 
396;  Macon,  etc.,  Ry.  Co.  v.  An- 
derson, 121  Ga.  666;  49  S.  E.  Rep. 
791;  Macon,  etc.,  Ry.  Co.  v. 
Barnes.  121  Ga.  443;  49  S.  E. 
Rep.  282:  Central  Ry.  Co.  v.  Price, 
121  Ga.  651;    49   S.  E.  Rep.   683; 


Atlanta,  etc.,   Ry.   Co.   v.    Weaver, 

121  Ga.  466;  49  S.  E.  Rep.  291; 
Meeks    v.    Atlanta,    etc.,    Ry.    Co. 

122  Ga.  266;  50  S.  E.  Rep.  99; 
Walker  v.  Georgia,  etc.,  Co.  122 
Ga.  368;  50  S.  E.  Rep.  121;  Tuck- 
er V.  Central  Ry.  Co.  122  Ga.  387; 
50  S.  E.  Rep.  128;  Southern  Ry. 
Co.  V.  Cunningham,  123  Ga.  90; 
50  S.  E.  Rep.  979;  Nix  v.  South- 
em  Ry.  Co.  4  Ga.  App.  331;  61 
S.  E.  Rep.  292;  Georgia,  etc.,  Ry. 
Co.  V.  Sasser,  4  Ga  App.  276;  61 
■S.  E.  Rep.  998. 

43  Georgia,  etc.,  Co.  v.  Neely,  56 
Ga.  540. 

In  Tennessee  comparative  negli- 
gence is  not  the  accepted  rule,  tho 
courts  holding  that  when  the  plain- 
tiff's owTi  negligence  is  the  proxi- 
mate cause  of  his  injury  he  cannot 
recover.  But  if  his  negligence  hi 
slight,  or  if  he  has  not  exercised  a 
superior  d^ree  of  care  or  dili- 
gence, he  may  recover,  his  conduct 
being  considered,  in  mitigation  oC 
his  damages,  "The  principal  dif- 
ference between  our  rule  and  the 
English  rule,  as  modified  by  the 
more  recent  decisions,  is  in  allow- 
ing the  damages  to  be  mitigated 
by  the  cond,uct  of  the  injured 
party."  Railroad  Co.  v.  Fain,  12 
Lea,  35 ;  Jackson  v.  Nashville,  etc., 
R.  Co.  13  Lea,  491;  49  Am.  Rep. 
663;  Nashville,  etc.,  R.  Co.  v.  Whe- 
less,  10  Lea,,  741;  43  Am.  Rep. 
317;  Whirley  v.  Whiteman,  1 
Head,  610;  Duch  v.  Fitzhugh,  2 
Lea,  307;  Hill  v.  Nashville,  etc., 
R.  Co.  9  Hsisk.  823;  Nashville, 
etc.,  R.  Co.  V.  Carroll,  6  Heisk. 
347;  Smith  v.  Nashville,  etc.,  R. 
Co.  6  Heisk.  174. 


148  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

§  88.  Comparative  negligence  in  Illinois. — In  Illinois, 
after  a  long  review  of  many  cases  in  that  state,  as  well  as  in 
other  states  and  in  England,  in  1858,  Justice  Breese,  as  a 
deduction  of  the  cases,  lays  down  this  rule :  "It  will  be 
seen,  from  these  cases,  that  the  question  of  liability  does 
not  depend  absolutely  on  the  absence  of  all  negligence  on  the 
part  of  the  plaintiff,  but  upon  the  relative  degree  of  care 
or  want  of  care,  as  manifested  by  both  parties,  for  all  care 
or  negligence  is  at  best  but  relative,  the  absence  of  the  high- 
est possible  degree  of  care  showing  the  presence  of  some  negli- 
gence, slight  as  it  may  be.  The  true  doctrine,  therefore,  we 
think  is,  that  in  proportion  to  the  negligence  of  the  defend- 
ant, should  be  measured  the  degree  of  care  required  of  the 
plaintiff;  that  is  to  say,  the  more  gross  the  negligence  mani- 
fested by  the  defendant,  the  less  degree  of  care  will  be  re- 
quired of  the  plaintiff  to  enable  him  to  recover.  Although 
these  cases  do  not  distinctly  avow  this  doctrine  in  terms, 
there  is  a  vein  of  it  perceptible,  running  through  very  many 
of  them,  as,  where  there  are  faults  on  both  sides,  the  plaintiff 
shall  recover,  his  fault  being  measured  by  the  defendant's 
negligence,  the  plaintiff  need  not  be  wholly  without  fault,  as 
in  Raisin  v.  Mitchell  ■**  and  Lynch  v.  Nurdin.*'^  We  say,  then, 
that  in  this,  as  in  all  like  cases,  the  degrees  of  negligence 
must  be  measured  and  considered,  and  whenever  it  shall 
appear  that  the  plaintiff's  negligence  is  comparatively  slight, 

The   rule   of   comparative   negli-  ages  shaill  be  increased  or  dimin- 

gence    does    not    prevail    in    Ken-  ished  by  the  jury  in  proportion  to 

tucky,    as    some    supjwse.      Louis-  the  amount  of  default  attributable 

ville^    etc.,    R.    Co.    v.    Filbern,    G  to  him."     Laws   1901,  chap.  4071; 

Bush,   574;    City   of    Covington    v.  General    Statutes    1906,   Sec.   3149. 

Bryant,    7    Bush,    248;    Louisville,  Cited   and   construed,   Louisville  & 

etc.,  R.   Co.  v.  Commonwealth,   80  ^'-   R.  Oo.   v.   Yarljorough,   60   Fla, 

Ky.   143;   44  Am.   Rep.  468;    Lou-  — ;    54   So.  462. 

isville    etc.     R     Co.    v.    Collins,    2  Before    the    enactment    of    this 

Duv     114.   'Helm   Bruce,    Ilsq..' of  statute    the    rule    of    comparative 

Louisville   Bar,   in   Kentuckv   Law  ^^'^^  "^'^  m  foi-ce.     Florida  Ry.  Co. 

Journal  for  April,  1882 ;  Kentuckv  ""'  J?"f '^^^'' ff^  ^ht   260 ;  52  iSo.  963. 

Bridges,  etc.,  Co.  v.  Sydor,  82  S.  ^']^''}'  ^^'!\  ^^^              "^  damages 

W.  Rep.  980;  26  Ky.  L.  Rep.  951;  f,^«      dmumshod    m    pro,>ortion   to 

TH    T      P     A     183  amount  or  defauH  attributable ' 

,   "^T^,  *"  .  ,  '    .    "            i-               .     ,  to   the    plaintiff.      Ivouisville    &    N. 

In  Florida,  in  an  action  against  ,^    ^^    |    Yarborough,  01  Fla.  307; 

a  railroad  company,  a  statute  pro-  54  So.  402. 

vides  that  "if  the  complainiint  and  u  q^j.^.  y  Payne,  252. 

the  company  ai«'  both  at  fault,  the  *'■>  4  Eng.  C.  L.  422. 
former  may  recover;  but  the  dam- 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ^^49 

and  that  of  the  defendant  gross,  he  shall  not  be  deprived  of 
his  action."  *°  In  a  subsequent  Illinois  case  the  court  put  this 
interpretation  upon  the  doctrine  of  comparative  negligence  as 
it  had  been  adopted  three  years  before:  "We  only  deem  it 
necessary  in  this  case,  to  examine  the  question  whether  th-^ 
husband  of  appellee  was  guilty  of  such  gross  negligence  as 
relieves  the  company  from  liability  for  his  death.  To  au- 
thorize a  recovery,  it  is  not  enough  to  simply  show  that  the 
company  was  guilty  of  negligence,  but  it  should  also  appear 
that  deceased  was  not  also  guilty  of  negligence  in  some  de- 
gree comparable  to  that  of  the  company  inflicting  the  injury. 


**  Galena,  etc.,  R.  Co.  v.  Jacobs 
(1858),  20  111.  478. 

In  Raisin's  ease  the  court 
summed  up  to  the  jury  as  follows: 
"The  question  is,  whether  the 
plaintiff  has  made  out  a  case  to 
entitle  him  to  damages.  You 
must  be  satisfied  that  the  injury 
was  occasioned  by  the  want  of 
care,  or  the  improper  conduct  of 
the  defendant,  and  was  not  im- 
putable in  any  degree  to  any  want 
of  care  or  any  improper  conduct 
on  the  part  of  the  plaintiff."  The 
jury  gave  the  plaintiff  a  verdict 
for  two  hundred  and  fifty  pounds. 
Chief  Justice  Tindall  then  asked 
the  jury  how  they  had  made  up 
their  verdict;  and  the  foreman  an- 
swered that  there  were  faults  on 
both  sides.  "Then,"  asked  the 
Chief  Justice,  "you  have  consid- 
ered the  whole  matter?"  The  fore- 
man answered  that  they  had. 

Thereupon  counsel  for  the  de- 
fendant submitted  to  the  court 
that  the  fact  which  the  foreman 
had  stated  entitled  the  defendant 
to  the  verdict;  but  he  was  met  by 
the  statement  of  the  Chief  Jus- 
tice: "i\o,  there  may  be  faults  to 
a  certain  extent."  In  a  note  the 
reporter    of   the   case    says:    "The 


verdict  in  this  case,  as  well  as  the 
opinion  of  the  Chief  Justice,  seem 
to  be  quite  correct,  and  sustain- 
able in  point  of  law,  according  to 
the  most  modern  authorities." 

In  Lynch  v.  Nurdin  the  evi- 
dence showed  that  the  defendant 
left  his  cart  and  horse  unattended 
in  a  thronged  thoroughfare,  and 
the  plaintiff,  a  child  of  seven 
years,  got  upon  the  cart  in  play. 
Another  child  incautiously  led  the 
horse  on,  and  the  plaintiff  was 
thereby  thrown  down  and  hurt. 
Chief  Justice  Denman  held  that 
the  plaintiff  was  liable  in  an  ac- 
tion on  the  case,  though  the 
child  was  a  trespasser  and  con- 
tributed to  the  injury  by  his  own 
act;  that  though  he  was  a  co-op- 
erating cause  of  his  own  misfor- 
tune by  doing  an  unlawful  act,  he 
was  not  deprived  of  his  remedy; 
and  that  it  was  properly  left  to 
the  jury  whether  the  defendant's 
conduct  was  negligent  and  the  in- 
jury caused  by  his  negligence. 

Chief  Justice  Denman,  in  com- 
menting upon  the  case,  concludes 
by  saying:  "His  [the  child's]  mis- 
conduct bears  no  proportion  to 
that  of  the  defendant,  which  pro- 
duced it." 


150  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

Each  party  is  bound,  whilst  pursuing  their  legal  business,  to 
exercise  a  due  regard  for  the  rights  of  others.  And  when 
each  is  equally  at  fault,  and  both  parties  negligent,  the  in- 
jured party  has  no  right  to  recover  for  an  injury  he  has  thus 
contributed  to  produce.  Each  party  must  employ  all  reason- 
able means  to  foresee  and  prevent  injury.  Whether  the  party 
receiving  the  injury  has  acted  with  even  a  slight  degree  of 
negligence  contributing  to  produce  the  injury,  to  recover 
he  must  show  that  the  other  party  has  been  guilty  of  gross 
negligence.  Whilst  the  party  upon  whom  the  injury  is  in- 
flicted must  use  all  reasonable  care,  he  is  not  held  to  the 
highest  degree  of  precaution  of  which  the  human  mind  is 
capable.  Nor  to  recover,  need  he  be  wholly  free  from  negli- 
gence, if  the  other  party  has  been  culpable."*^ 

§89.  Negligence  a  relative  term.— "In  applying  the 
measure  of  slight  and  gross  negligence  to  the  acts  of 
the  respective  parties  charged  to  have  been  negligent," 
said  Justice  Scholfield  of  the  Supreme  Court  of  Illi- 
nois, "it  is,  of  course,  always  to  be  held  in  remembrance 
that  the  term  'negligence'  is,  itself,  relative,  'and  its  appli- 
cation depends  on  the  situation  of  the  parties,  and  the  degree 
of  care  and  diligence  which  the  circumstances  reasonably  im- 
pose. '  *^  The  question,  therefore,  in  the  present  instance, 
related  to  the  measure  of  care,  under  the  circumstances  shown 
by  the  evidence  to  have  existed,  imposed  upon  the  respective 
parties.*®     Whether,  therefore,  the  plaintiff's  intestate  failed 

*'  Chicago,  etc.,  R.  C«.  v.  Dewey  was  killed.  A  recovery  was  de- 
(1861),  26  111.  255.  This  was  a  nied,  because  the  facts  showed  he 
case  where  the  deceased  attempted  was  guilty  of  gross  negligence  and 
to  pass  between  two  sections  of  a  the  defendant  was  not  guilty  of 
freight  train,  in  the  night  time,  in  any  negligience  for  its  engineer 
order  to  reach  an  ap])roaching  had  a  riglit  to  presume  no  one 
passenger  train  he  d<'sired  to  would  attempt  to  pass  between  the 
board,  and  was  caught  between  two  freight  train  sections, 
the  bumpers  of  two  freight  cars  ^*  Citing  Cooley  on  Torts,  630. 
of  the  twx)  sections  of  the  freight  *"  Chicago,  etc.,  R.  Co.  v.  John- 
train    backing    up    together,    and  son,  103  111.  512. 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       15^ 

to  exercise  ordinary  care,  is  to  be  determined — and  there  can 
be  no  presumption  under  these  circumstances  otherwise— 
with  reference  to  his  rights,  duties  and  obligations,  and  the 
rights,  duties  and  obligations  of  the  defendant,  under  the 
peculiar  circumstances  here  in  evidence.  Being  thus  deter- 
mined that  he  has  failed  to  exercise  ordinary  care,  the  legal 
conclusion  is,  he  is  guilty  of  negligence."^" 

§  90.  Illinois  rule  extended.— The  rule  of  comparative 
negligence  as  first  announced  in  Illinois,  namely,  "that  there 
must  be  negligence  on  the  part  of  the  defendant,  and  no 
want  of  ordinary  care  on  the  part  of  the  plaintiff,  and  w^here 
there  has  been  negligence  in  both  parties,  still  the  plaintiff 
may  recover,  where  his  negligence  is  slight,  and  that  of  the 
defendant  is  gross,  in  comparison  with  that  of  the  plaintiff," 
was  at  a  later  period  ''extended  to  include  cases  where  the 
negligence  of  the  plaintiff  had  contributed  in  some  degree  to 
the  injury  complained  of."  This  was  "upon  the  principle 
that,  although  a  party  may  have  himself  been  guilty  of  negli- 
gence, it  does  not  authorize  another  to  recklessly  and  wan- 
tonly destroy  his  property  or  commit  a  personal  injury. ' '  ^^ 

§  91.— Ordinary  care  wanting- — Plaintiff's  negligence 
slight. — The  fact  that  the  negligence  of  the  plaintiff  was 
slight  did  not  enable  him  to  recover,  if  he  had  not  observed 
ordinary  care  to  avoid  the  injury  and  an  instruction  which 
omitted  the  statement  that  the  plaintiff  must  have  used  ordi- 
nary care  was  held  erroneous.  "The  fact  that  tlie  defendant 
may  have  been  guilty  of  gross  negligence  does  not  authorize  a 
recovery.  A  duty  rests  on  the  injured  party  to  exercise  ordi- 
nary care,  and,  unless  that  duty  has  been  observed,  a  recovery 
cannot  be  had.  In  other  words,  ordinary  care  is  an  essential 
element  on  the  part  of  the  injured  party  to  authorize  a  re- 

»» Chicago,  etc.,  R.  Co.  v.   John-  R.    Co.    v.    Gretzner,    46    111.    75; 

son,  103  111.  512.  Rockford,   etc.,   R.   Co.   v.   Coultas, 

"Chicago,   etc.,   R.    Co.    v.    Van  67  111.  398. 
Patten,  64  111.  510;    Chicago,  etc., 


152 


FEDERAL   EMPLOYERS     LIABILITY    ACT. 


covery.  But  that  element  was  omitted  from  the  instruction 
[given]  ;  and  the  jury  was,  in  substance,  told  that  the  plain- 
tiff, although  guilty  of  some  negligence,  might  recover,  if  the 
negligence  of  the  defendant  was  gross,  and  the  negligence  of 
the  plaintiff  was  slight,  in  comparison  with  the  negligence  of 
the  defendant.  We  do  not  regard  this  as  a  correct  proposi- 
tion of  law,  or  as  a  correct  enunciation  of  the  doctrine  of 
comparative  negligence.  The  plaintiff  may  have  failed  to 
exercise  ordinary  care  when  his  acts  and  conduct  are  con- 
sidered in  the  light  of  all  the  evidence,  and  yet,  under  the 
terms  of  this  instruction,  he  might  recover  if  his  negligence 
was  only  slight  when  compared  alone  with  that  of  defendant. 
In  considering  the  doctrine  of  comparative  negligence,  ex- 
pressions may  be  found  in  several  cases  which  might  sustain 
the  instruction,  where  it  has  been  said,  in  a  general  way,  that 
an  injured  party,  guilty  of  slight  negligence,  may  recover, 
where  the  negligence  of  the  defendant  was  gross,  and  the 
negligence  of  the  plaintiff  slight,  in  comparison  with  the  negli- 
gence of  the  defendant  but  it  has  always  been  under- 
stood, and  the  declaration  has  always  been  made  with  the 
understanding  that  in  no  case  can  a  recovery  be  had  un- 
less the  person  injured  has  exercised  ordinary  care  for  his 
safety."" 


"^Willard  v.  Swanson,  126  111. 
381;  18  N.  E.  548;  affirming  12 
Bradw.  (111.)  631;  Fisher  v. 
Cook,  125  111.  280;   17  N.  E.  763. 

This  instruction  was  held  to  be 
correct:  "If  the  jury  believe  'rom 
the  evidence  that  the  plaintiff  was 
injured  as  charged  in  the  decla- 
ration, and  that  he  or  the  person 
who  was  driving  the  buggy  in 
which  h^i  sat  was  giiilty  of  some 
negligence  which  contribut.ed  to 
Raid  injury,  but  that  said  negli- 
gence of  the  plaintiff  or  of  said 
pers<^)n  driving  the  buggy,  if  any, 
was  sliglit.  and  that  the  defend- 
ant, by  his  servant,  was  guilty  of 


negligence,  as  charged  in  the  dec- 
laration, and  that  said  negligence, 
if  any,  of  said  defendant,  caused 
said  injury  to  the  plaintiff,  and 
that  said  negligence,  if  any,  of 
the  defendant  was  gross,  and  the 
negligence  of  the  said  plaintiff,  or 
the  person  driving  said  buggy, 
was  slfgfit  when  compared  there- 
with, then  the  jury  are  instructed 
that  such  slight  negligence  on  the 
part  of  the  plairtiff.  or  the  person 
driving  said  buggy,  if  you  find 
from  the  evidence  it  was  slight, 
will  not  prevent  the  plaintiff  from 
recovering  in  this  case."  In  an- 
oither     instruction     the     sentence, 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.      I53 

§92.    Want  of  ordinary  care  defeats   a  recovery. — The 

want  of  ordinary  care  on  the  part  of  the  plaintiff  could 
not  be  construed  as  "slight  negligence"  on  his  part.  Speak- 
ing of  erroneous  instructions  on  this  point  that  had  been 
given,  Justice  Scholfield  of  Illinois,  in  a  case  in  the  Su- 
preme Court  of  that  state,  said:  "The  utmost  degree  of 
negligence  merely — and  it  is  of  this  only  and  not  of  tres- 
pass or  other  wrongs  that  the  instructions  speak — of  which 
the  defendant  can  be  guilty,  is  gross  negligence.  The  plain- 
tiff's negligence,  then,  by  the  very  terms  employed,  is  ordi- 
nary, and  that  of  the  defendant  gross,  in  comparison  with 
each  other.  The  language  employed,  in  effect,  says,  although, 
as  to  this  particular  act,  the  plaintiff's  intestate  was  guilty  of 
ordinary  negligence,  and  the  defendant  guilty  of  gross  negli- 
gence, still,  if  the  jury  believe  the  plaintiff's  intestate's 
negligence  was  slight — that  is,  that  it  was  not  what  the  very 
terms  employed  admit  it  to  have  been — and  that  of  the  de- 
fendant gross,  in  comparison  with  each  other,  they  will  find 
the  defendant  guilty.  Surely  it  needs  no  demonstration  that 
if,  as  to  a  particular  act,  the  negligence  of  the  plaintiff  was 
ordinary  and  that  of  the  defendant  gross,  their  relation  is 


"If    the    jury   find    from    the    evi  Fetsam,    123    III.    518;     15    N.    E. 

dence    that    neither    the    plaintiff  169;  Chicago,  etc.,  R.  Co.  v.  John- 

nor    the    person   who   was    driving  son,    116    111.    206;    4   N.    E.    381; 

the   buggy    in    which    he    sat    was  Chicago,   etc.,   R.   Co.  v.   Ryan,   70 

guilty    of    any    negligence    which  Til.  211 ;  S.  C.  60  111.  172. 

contributed   to   said   injury,"    was  An  instruction  to  the  jury  that 

sufficient  to  cover  the  charge  that  if  they  "believe  from  the  evidence 

plaintiff   must   have   exercised   or-  that  the  plaintiff  was  wholly  with- 

dinary   care  to   avoid   the   injury.  out  negligence,  yet,  if  you  further 

Christin  v.  Erwin,  125  111.  619;   17  believe  from  the  evidence  that  the 

N.   E.   707.  defendant  was  guilty  of  gross  neg- 

An    instruction    on   comparative  ligence,    while    the    plaintiff    was 

negligence  which  omitted  to  state  guilty    of   slight    negligence,    then 

that     the      plaintiff     must     have  such    slight    negligence    will    not 

been   in    the   exercise   of   due  care  prevent    a    recovery,"    was    erro- 

when  injured  to  avoid  the  injury  neous,  because  it  assumes  that  the 

was    deemed    not   erroneous    if    in  plaintiff   exercised    ordinary    care, 

another  instruction  that  charge  wa=i  Toledo,  etc.,  R.  Co.   v.   Cline,    135 

given.      Chicago,    etc,    R.    Co.    v.  HI.  41 ;  25  N,  E.  846. 


154 


FEDERAL   EMPLOYERS'    LIABILITY    ACT. 


not  changed  by  conparing  them  with  each  other.  The  same 
evidence  that  determines  the  one  is  gross  and  the  other  ordi- 
nary, fixes  their  relative  degrees  with  reference  to  each 
other."" 


=^  Chicago,  etc.,  R.   Co.  v.  John- 
son,  103  111.   512. 

"It  seems  to  be  thought  what  is 
said   in    Stratton   v.   Central   City 
Horse  Ry.  Co.  95  111.  25,  in  criti- 
cising   certain    instructions    there 
given,    sustains    the    ruling   below 
in    regard    to    these    instructions. 
This    is    a    misapprehension.      In 
those    instructions   it   was    said   a 
failure    to   exercise   ordinary   care 
was  gross  negligence,   and   in  one 
it  was  said  no  action  would  He  if 
the  plaintiff  failed  to  exercise  or- 
dinary care,  unless  the  defendant 
inflicted  the  injury.     We  have  be- 
fore  herein   shown  both  these   po- 
sitions to  be  inaccurate.     The  fail- 
ure   to    exercise   ordinary   care    is 
only   ordinary  negligence,   and   al- 
though  a   plaintiff   might  not  ex- 
ercise  ordinary   care,   yet   the    de- 
fendant would  be  liable  for  injur- 
ing him  if  his  act  causing  injury 
was  so  willfully  and  wantonly  reck- 
less as  to  authorize  the  presump- 
tion of  an  intention  to  injure  gen- 
erally,   notwithstanding    he    might 
have  had   no   special    intention   to 
injure     the     plaintiff."       Chicago, 
etc.,    R.    Co.    V.   Johnson,    103    111. 
512. 

"It  must  be  conceded  that  the 
doctrine  of  comparative  negli- 
gence has  no  plac^  in  a  case  where 
the  plaintiff  has  failed  to  exercise 
ordinary  care."  "The  failure  to 
■•xercise  ordinary  care  is  more 
han  slight  negligence."  Toledo, 
{tc,  R.  Co.  V.  Cline,  31  111.  App. 
rff53. 

Ther(!  must  have  b.een  "no  want 


of  ordinary  care  on  the  part  of 
the  plaintiff."  Chicago,  etc.,  R. 
Co.  V.  Gretzner,  46  111.  74;  Illinois, 
etc.,  R.  V.  Simmons,  36  111.  242; 
Western  U.  T.  Co.  v.  Quinn,  56 
111.  319;  Centralia  v.  Krouse,  64 
111.  19;  Chicago,  etc.,  R.  Co.  v. 
Gregory,  58  111.  272;  Chicago,  etc., 
Ry.  Co.  V.  Bentz,  38  111.  App.  485; 
Illinois,  etc.,  R.  Co.  v.  Green,  81 
111.  19;  Quincy  v.  Barker,  81  111. 
300;  Toledo,  etc.,  R.  Co.  v.  Cline, 
135  111.  41;   25  N.  E.  Rep.  846. 

Plaintiff  had  the  burden  to 
show  that  the  defendant  was  neg- 
ligent and  that  he  himself  used 
due  care.  Chicago,  etc.,  R.  Co.  v. 
Hazzard,  26  111.  373 ;  Chicago,  etc., 
R.  Co.  V.  Dewey,  26  111.  255;  Chi- 
cago, etc.,  R.  Co.  V.  Gretzner,  46 
111.  74;  Chicajo,  etc.,  R.  Co.  v, 
Simmons,  38  111.  242 ;  Illinois,  etc., 
R.  Co.  V.  Slatton,  54  111.  133;  Ohio, 
etc.,  R.  Co.  V.  Shonefelt,  47  111. 
497;  Chicago,  etc.,  R.  Co.  v.  Cass, 
73  111.  394;  Kepperlv  v.  Ramsden, 
83  111.  354. 

If  it  was  not  shown  that  the 
plaintiff  did  not  iise  ordinary  care, 
or  if  it  was  shown  that  he  did  not, 
then  the  rule  of  comparative  neg- 
ligence had  no  place  in  the  case. 
Garflold  IMfg.  Co.  v,  McLean,  18 
111.  App.  447;  Chicago,  etc.,  R. 
Co.  V.  Thorson,  11  111.  App.  631; 
Chicago,  etc.,  R.  Co.  v.  Rogers,  17 
111.  App.  038;  Chicago,  etc.,  R. 
Co.  v.  White,  26  111.  App.  586; 
Chicago,  etc.,  R.  Co.  v.  Flint,  22 
111.  App.  5j02;  Chicago,  etc.,  R.  Co. 
V.  Dougherty,  12  111.  App.  181; 
Union,    etc.,    Co.    v.    KoUaher.    12 


CONTPwIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       3^55 

§  93.  Failure  to  exercise  ordinary  care  more  than  slight 
negligence. — "The  word  'diligence/  as  used  in  the  deiini- 
tions  of  the  degrees  of  negligence  to  which  we  have  referred," 
said  Justice  Scholfield  of  Illinois,  "is  synonymous  with 
'care.'  This  is  shown  by  the  text  in  Story  immediately  fol- 
lowing the  definitions  quoted.^*  It  is  there  said:  'For  he 
who  is  only  less  diligent  than  very  careful  men,  cannot  be 
said  to  be  more  than  slightly  inattentive ;  he  who  omits  ordi- 
nary care,  is  a  little  more  negligent  than  men  ordinarily  are ; 
and  he  who  omits  even  slight  diligence,  falls  in  the  lowest  de- 
gree of  prudence,  and  is  deemed  grossly  negligent.'  It  can 
not,  then,  be  legally  true,  that  where  the  plaintiff  fails  to 
exercise  ordinary  care,  and  the  defendant  is  guilty  of  negli- 
gence only,  the  plaintiff's  negligence  is  slight  and  that  of  the 
defendant   gross  in  comparison  with  each  other.  "^^ 

§  94.    Ordinary  and   slight  negligence  in  their   popular 

sense.— "Giving  the  words  their  popular  sense,  it  would 
rather  seem  that  ordinary  negligence  would  be  such  negli- 
gence as  men  of  common  prudence  indulge  in,  which  betokens 
only  the  exercise  of  ordinary  care,  and  not  the  want  of  ordi- 
nary care,  as  is  suggested.     This,  where  the  law  requires  only 

111.  App.  400;  Wabash,  etc.,  R.  Co.  that    was    stronger    than    the    law 

V.  Moran,  13  111.  App.  72;  Union,  justified,  being  an  ignoring  of  the 

etc.,  Co.  V.  Monaghan,  13  111.  App.  doctrine  of  comparative  negligence. 

148;   Toledo,  etc.,  R.  Co.  v.  Cline,  Ohio,  etc.,  R.  Co.  v.  Porter,  92  111, 

135  111.  41;  2'5  N.  E.  Rep.  846.  437. 

But   the  plaintiff   did   not  have  "  "The  definition  of  gross  negli- 

to   exercise   the   highest  degree   of  gence   itself  proves   that  it  is  not 

care.       Chicago,    etc.,    R.     Co.    v.  intended  to  be  the  subject  of  com- 

Payne,  59   111.   534;    Terre   Haute,  parison.     It  is  'the  want  of  slight 

etc.,  R.  Co.  V.  Voelker,  31  111.  App.  diligence.'       Slight    negligence    is 

314.  'the  want  of  great  diligence,'  and 

It  was  error  to  say  to  the  jury  intermediate,     then,     is     ordinary 

that    the    plaintiff    could    not    re-  negligence,  which  is   defined  to  be 

cover    unless    they    "believe    from  'the  want  of  ordinary  diligence.' " 

the  evidence  that  the  injury  com-  Story  on  Bailments,  Sec.  17. 

plained  of  was  caused  by  the  neg-  °^  Chicago,  etc.,   R.  Co.  v.  John- 

ligence   of   the   defendant,   and   the  son,    103   111.  512. 
plaintiff   was    without    fault,"    for 


156  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

ordinary  care,  is  not  negligence  at  all,  for  in  law  negligence 
is  always  faulty.  It  is  the  failure  in  some  degree  to  use 
that  care  which  the  law  requires  under  the  circumstances. 
In  a  case  where  the  law  demands  only  the  use  of  ordinary 
care,  and  ordinary  care  is  actually  exercised,  there  is  in  law 
no  negligence  whatever.  In  such  case  it  is  not  true  that  the 
want  of  great  diligence  is  in  law  slight  negligence.  In  the 
popular  sense  of  the  words,  slight  negligence  is  a  slight  want 
of  the  care  which  the  circumstances  demand.  A  man  ob- 
viously, therefore,  may  in  such  case  fail  slightly  to  use  ordi- 
nary care,  and  in  the  popular  sense  of  the  words  he  would 
be  guilty  of  slight  negligence,  and  only  slight  negligence,  and 
this,  although  he  did  not  do  all  that  ordinary  care  required. 
And  so  of  'gross  negligence.'  Its  popular  meaning  is  a 
very  great  failure  to  use  the  care  which  the  law  requires. 
It  is  not  essential  to  gross  negligence  that  there  shall  be  an 
utter  want  of  care,  or,  in  the  language  of  Story,^®  'the  want 
of  even  'slight  diligence.'  The  exercise  of  slight  diligence, 
where  the  highest  degree  of  care  is  by  law  required,  may  still 
leave  the  party  guilty  of  gross  negligence — that  is,  guilty  of 
a  very  great  failure  to  exercise  the  highest  care."  ^^ 

§  95.  Mere  preponderance  of  defendant's  negligence  not 
sufficienl^Defendant's  clearly  exceeding  plaintiff's  negli- 
gence.— The  mere  fact  that  the  defendant's  negligence 
exceeds  that  of  the  plaintiff's  did  not  enable  the  plaintiff  to 
recover.  It  was  only  where  his  negligence  was  slight  as  com- 
pared with  that  of  the  defendant's.  "But  he  cannot  recover 
unless  the  negligence  of  the  defendant  clearly  and  largely 
exceeds  his."     "Under  the  instruction   given,"   although 

""Story    on    P.ailmonts,    S<'c.    17,  time    in   qupstion,   giiilty   of  some 

is  referred  to.  slij^lit     nofrligonce    either     in     the 

"  .Iiistice  Dictcey,  in  his  dissent-  management  of  liis  team,  or  in  his 

ing    opinion,    in    Chicago,    etc.,    R.  efforts  to  escape  contact  with   the 

Co.  V.  .Johnson,   lO.S  Til.  512.  engine,    still,    if    they    further    be- 

"■"'P^ven  though  the  jury  sliould  lieve,  from   the  evidence,  that  the 

Ijelieve,    from    the    evidence,    tliat  negligence    of    the    railway    com- 

the  said  Horace  Clarli  was,  at  the  pany,    at    said    time,    clearly    ex- 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.      3^57 

there  may  have  been  but  slight  negligence  on  the  part  of  the 
company,  and  some  negligence  on  the  part  of  the  deceased, 
still,  if  the  negligence  of  the  company  clearly  exceeded  that 
of  deceased,  although  in  the  smallest  degree,  plaintiff  might 
recover.  Or,  under  a  case  where  there  is  gross  negligence 
on  the  part  of  both  plaintiff  and  defendant,  still,  if  that  of 
the  defendant  was  clearly,  though  in  the  slightest  degree, 
the  greater,  a  recovery  could  be  had  under  such  instruction. 
This  has  not  been  announced  by  this  court  as  the  law,  in 
any  case,  and  to  do  so  would  be  unreasonable,  and  work 
great  injustice  and  wrong.  It  is  not  the  law,  and  hence 
cannot  be  sanctioned  as  such.  *  *  *  "We  have  no  doubt 
this  instruction  misled  the  jury  in  their  finding,  and  it  should 
not  have  been  given.  "^® 

§  96.     Gross  and  slight  negligence  distinguished.— In  1882 

the  Supreme  Court  undertook  to  distinguish  "gross"  and 
"slight"  negligence  by  instituting  a  comparison  between 
them.  "In  holding  that  the  plaintiff  may  recover,"  said  that 
court,  "in  an  action  for  negligence,  notwithstanding  he  has 
been  guilty  of  contributive  negligence,  where  his  negligence 
is  but  slight  and  that  of  the  defendant  gross  in  comparison 

ceeded  any  negligence,  if  such  neg-  train  while  he  was  traveling  upon 
ligence  has  been  proven,  of  said  a  highway  which  crossed  the  de- 
Clark,  and  was  the  immediate  fendant's  railroad  there,  although 
cause  of  his  death,  then  the  jury  the  jury  may  believe,  from  the 
must  find  the  railway  company  evidence,  that  the  deceased  was 
guilty."  himself  guilty  of  some   negligence 

°^  Chicago,  etc.,  E.  Co.  v.  Clark,  which  may  have,   in  some   degree, 

70   111.  276;    Illinois   Cent.   R.   Co.  contributed  to   the  injury,   yet,   if 

V.   Backus,   55    111.    379;    Chicago,  the  jury  further  believe,  from  the 

etc.,  R.  Co.  V.  Gretzner,  46  111.  83:  evidence,    that    the    negligence    of 

Illinois,    etc.,    R.    Co.   v.    Tripl<?tt,  the  defendant  was  of  a  higher  de- 

38  111.  485.  gree,    or    so    much    greater    than 

This   instruction  was  held  erro-  that  of  the  deceased  that  that  of 

neous:     "The     court     further     in-  the  latter  was   slight  in  compari- 

Btructs  the  jury  that   if  they   be-  son.    the    plaintiff    is    entitled    to 

lieve,  from  the  evidence,  that  Gil-  recover    in   this   action."    Chicago, 

bert  H.  Dimick  was  killed  by  the  etc.,  Ry.  Co.  v.  Dimick,  96  111.  42. 
defendant's  locomotive  engine  and 


258  FEDERAL   EMPLOYERS     LLVBILITY    ACT. 

with  each  other,  it  must,  of  course,  be  understood  the  terms 
'slight  negligence'  and  'gross  negligence'  are  used  in  their 
legal  sense,  as  defined  by  common  law  judges  and  text 
writers,  for  otherwise  the  terms  would  convey  no  idea  of  a 
definite  legal  rule.  As  defined  by  those  judges  and  writers, 
these  terms  express  the  extremes  of  negligence.  Beyond 
gross  and  slight  there  are  no  degrees  of  negligence.  'Gross 
gross,'  'grosser  gross,'  and  'grossest  gross,'  and  'slight  slight,' 
'slighter  slight.'  and  'slightest  slight,'  are  absurd,  and,  in  a 
legal  sense,  impossible  terms.  What  is  less  than  slight  negli- 
gence the  law  takes  no  cognizance  of  as  a  ground  of  action, 
and  beyond  gross  negligence  the  law,  while  recognizing  there 
may  be  liability  for  a  trespass  because  of  a  particular  in- 
tention to  do  wrong,  or  of  a  degree  of  willful  and  wanton 
recklessness  which  authorizes  the  presumption  of  a  general 
intention  to  do  wrong,  recognizes  no  degree  of  negligence. 
The  definition  of  gross  negligence  itself  proves  that  it  is  not 
intended  to  be  the  subject  of  comparison.  It  is,  'the  want  of 
slight  diligence.'  Slight  negligence  is,  'the  want  of  great 
diligence,'  and  intermediate  there  is  ordinary  negligence, 
which  is  defined  to  be  'the  want  of  ordinary  diligence.'  "  "<* 

*"  Chicago,  etc.,   E.  Co.  v.  John-  naturally  be  adopted  by  a  jury  in 

son,   103  111.   512,  citing  Story  on  giving    effect    to    an     instruction 

Bailments,    Sec.    17;    Shearman   &  given   by   the  court."     "Nor   do   I 

Redfield   on   Negligence    (2d   Ed.),  concur    in    the    dicta    which    say 

Sees.  16,  17;  Oooley  on  Torts,  631,  tliere   are   and   can  be   no  degrees 

and  Central  Military  Tract.  R.  Co.  in    gross    negligence,    and    no    de- 

V.   Rockafellow,   17    111.    541.  grees    in    slight    negligence.      The 

The  opinion  was  delivered  by  adjectives  'slight'  and  'gross'  seem 
Justice  Scholfield;  and  while  Jus-  to  me  to  be  capable  of  compari- 
tice  Dickey  concurred  tliorein,  he  son,  as  most  adjectives  are.  I  see 
did  not  concur  in  that  part  above  no  absurdity  in  saying  'gross,' 
quoted,  saying  tliat  Justice  Story  'more  gross,'  'most  gross,'  or 
in  his  treatise  on  Bailments,  had  'gross,'  'grosser,'  'grossest,'  or 
not  used  the  terms  "gross  negli-  'slight,'  'more  slight,'  'slightest.' 
gence"  and  "slight  negligence"  in  In  fact,  in  the  quotation  from 
the  sense  or  in  the  meaning  in  Story  [Story  on  Bailments,  Sec. 
which  they  had  Ikcii  used  in  tlie  17]  he  speaks  of  'infinite  shades 
previous  Illinois  case;  "nor  does  of  care,'  from  the  'slightest'  mo- 
he  give  tlie  meaning  which  would  mentary  thouglit  to  tlie  'most  vig- 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE. 


159 


§  97.    Plaintiff's  negligence  compared  with  defendant's. — 

The  quotations  made  show  that  in  those  states  the  com- 
parison to  be  instituted  must  have  been  the  negligence  of  the 
plaintiff  compared  with  that  of  the  defendant;  and  not  a 
comparison  of  the  plaintiff's  negligence  with  what  an  ordi- 
narily prudent  and  careful  man  would  have  done  under  the 
particular  circumstances;  nor  could  the  defendant's  conduct 
be  compared  with  what  an  ordinarily  prudent  and  careful 
man  would  have  done  under  like  circumstances.  The  negli- 
gence of  plaintiff  had  to  be  compared  with  that  of  the  de- 
fendant; and  that  was  where  the  name  of  ''Comparative 
Negligence ' '  had  its  origin.  If  the  plaintiff 's  negligence  con- 
tributed to  the  injury,  then  before  he  could  recover  it  had 
to  appear  that  his  negligence  was  slight  in  comparison  with 
that  of  the  defendant 's,  which  had  to  be  gross.^^    And  an  in- 


ilant  solicitude.'  In  fact,  the  im- 
perfection of  these  definitions  of 
Story  leads  Cooler,  in  his  work 
on  Torts,  p.  630,  to  say  of  this 
classification,  that  it  'only  indi- 
cates that  under  the  special  circum- 
stances great  care  or  caution  was 
required,  or  only  ordinary  care,  or 
only  slight  care,'  and  to  add,  'if 
the  care  demanded  was  not  exer- 
cised, the  case  is  one  of  negli- 
gence.' The  terms  'slight  negli- 
gence' or  'moderat-e  negligence,' 
or  'gross  negligence,'  do  not  indi- 
cate offenses  of  a  different  nature, 
but  different  degress  in  offenses 
of  the  same  nature.  I  think, 
therefore,  there  may  be  cases  in 
which  it  may  be  legally  true  that 
the  plaintiff  has  failed  in  some 
degree  to  exercise  ordinary  care, 
and  that  in  the  same  case  the  de- 
fendant has  oee  ■  guilty  ci  gross 
negligence,  wherein  the  plaintiff's 
negligence  may  be  slight — that  is, 
may  consist  of  a  slight  failure  to 
use    ordinary    care — and    that    of 


the  defendant  gross  in  compari- 
son therewith.  To  my  mind  the 
proposition  that  a  plaintiff's  neg- 
ligence is  Slight,  IS  not  compatible 
with  the  proposition  that  he  has 
failed  in  some  degree  to  use  ordi- 
nary   diligence." 

*^  Chicago,  etc.,  R.  Co.  v.  Fiet- 
sam,  123  111.  518;  15  N.  E.  Rep. 
169;  Lake  Shore,  etc.,  R.  Co.  v. 
Johnson,  135  111.  641;  20  N.  E. 
Rep.     510;     Willard    v.    Swanson, 

126  111.  381;  18  N.  E.  Rep.  548; 
Village    of   Jefferson   v.   Chapman, 

127  111.  438;  20  N.  E.  Rep.  33; 
Jacksonville,  etc.,  R.  Co.  v.  South- 
worth,  135  111.  250;  25  N.  E.  Rep. 
1003;  Christian  v.  Erwin,  125  111. 
619;  17  N.  E.  Rep.  707;  Chicago, 
etc.,  R.  Co.  V.  Johnson,  116  III. 
206;  4  X.  E.  Rep.  381;  Toledo, 
etc,  R.  Co.  V.  Cline,  135  111.  41; 
25  X.  E.  Rep.  846;  Chicago,  etc., 
Ry.  Co.  V.  Dunleavy,  129  111.  132; 
22  N.  E.  Rep.  15 !  Chicago,  etc., 
R.  Co  V.  Longley.  2  111.  App.  505; 
City  of  Winchester  v.  Case,  5  III. 


160 


FEDERAL   EMPLOYERS      LIABILITY    ACT. 


struction  which  required  the  jury  to  find  whether  the  negli- 
gence of  the  plaintiff  was  slight  and  that  of  the  defendant 
was  gross,  but  did  not  require  them  to  compare  the  negli- 
gence of  the  respective  parties,  and  determine  from  such 
comparison  whether  the  one  was  slight  and  the  other  gross, 
was  erroneous.^2  If  the  plaintiff  were  guilty  of  gross  negli- 
gence, then  he  could  not  recover,"^  and  it  was  even  said  that 
if  he  were  guilty  of  negligence  contributing  to  the  injury, 
he  could  not  recover.^*  If  both  were  equally  negligent,  there 
could  be  no  recovery.®^  Nor  was  there  any  middle  ground 
between  slight  and  gross  negligence,  the  courts  refusing  to 
recognize  any  degrees  of  negligence.  Comparative  negli- 
gence, it  was  said,  did  not  authorize  the  jury  to  weigh  the 
degrees  of  negligence  and  find  for  the  party  least  in 
fault."®     Of  the   rule   one   of  the   appellate    courts   of   the 


App.  486;  Wabash  Ry.  Co.  v. 
Jones,  5  111.  App.  607;  North 
Chicago,  etc.,  R.  Co.  v.  Monka,  4 
111.  App.  664;  Illinois  Central  R. 
Co.  V.  Brookshire,  3  111.  App.  225 ; 
Chicago,  etc.,  R.  Co.  v.  Krueger, 
124  111.  457;  17  N.  E.  Rep.  52; 
affirming  23  111.  App.  639;  Chi- 
cago, V.  Stearns,  105  111.  554; 
Chicago,  etc.,  R.  Co.  v.  Fears,  53 
111.  115;  Illinois,  etc.,  R.  Co.  v. 
Slatton,  54  111.   133. 

"2  Chicago,  etc.,  R.  Co.  v.  Dil- 
lon, 17  111.  App.  355;  Moody  v. 
Peterson,  11  111.  App.  180;  Pitts- 
burg, etc.,  Ry.  Co.  v.  Shannon, 
11  111.  App.  222;  Union  Ry.,  etc., 
Co.  V.  Kollaher,  12  111.  App.  400; 
Chicago,  etc.,  R.  Co.  v.  O'Connor, 
13  111.  App.  62. 

"'Chicago,  etc.,  R.  Co.  v.  Lee, 
68   111.    576. 

*•  Chicago,  etc.,  R.  Co.  v.  Fears, 
53  Til.  115;  Illinois,  etc.,  R.  Co.  v. 
Slatton,  54  111.  133.  But  this  is 
«iualified  in  a  later  case.  Chicago, 
etc.,  R.  Co.  V.  Krueger,  23  111. 
App.  630;  124  111.  457;  17  N.  E. 
Rep.  52, 


«=  Illinois  Cent.  R.  Co.  v.  Back- 
us, 55  111.  370 ;  Indianapolis,  etc., 
R.  Co.  V.  Stables,  62  111.  313; 
Chicago,  etc.,  R.  Co.  v.  Murray, 
62  111.  326;  Ohio,  etc,  R.  Co.  v. 
Eaves,  42  111.  288;  Chicago,  etc., 
R.  Co.  V.  Lee,  68  111.  576. 

"If  both  parties  are  equally  in 
fault,  or  nearly  so,  the  rule  is  the 
same."  Chicago,  etc.,  R.  Co.  v. 
Van  Patten,  64  111.  510. 

'^  Wabash  Ry.  Co.  v.  Jones,  5 
111.  App.  606;  korth  Chicago,  etc., 
Co.  V.  Monka,  4  111.  App.  664; 
Chicago,  etc.,  R.  Co.  v.  Van  Pat- 
ten, 64  111.  510. 

"It  never  was  the  law  in  this 
state  that  the  negligence  of  the 
parties  to  a  controversy  upon  that 
object  would  bo  weighed  in  a 
scale,  where,  if  it  inclined  at  all 
in  favor  of  the  plaintiff,  he  might 
recover  against  the  defendant. 
Nor,  it  is  believed,  has  such  a  rule 
over  been  ostablisliod  l)y  a  court 
of  recognized  authority,  that  if 
the  nogligonco  of  the  plaintiff  in 
a  case  of  this  kind  [n  defective 
town  bridge]    is  a  shade  less  thaa 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ^61 

state  said:  "The  rule  of  comparative  negligence  requires 
and  has  always  required  much  more  than  a  mere  pre- 
ponderance of  negligence  on  the  part  of  the  defendant 
to  authorize  a  recovery.  When  the  plaintiff  is  charge- 
able with  contributory  negligence,  though  slight,  there 
must  be  a  wide  disparity  between  1m^  negligence  and  that  of 
the  defendant  before  he  can  recover."  '^'  Gross  negligence  on 
the  part  of  the  defendant  did  not  excuse  the  plaintiff  from 
the  use  of  ordinary  care."^  The  burden  was  on  the  plaintiff 
to  not  only  show  that  the  defendant's  negligent  conduct 
caused  the  injury,  but  he  had  also  the  burden  to  show  that 
he  was  free  from"  negligence  or  else  that  his  own  negligence 
was  slight  in  comparison  with  that  of  the  defendant.*'^     In 


that  of  the  defendant,  he  may  be 
allowed  to  recover."  Provident, 
etc.,  V.   Carter,  2  111.  App.  34. 

"The  doctrine  of  comparative 
negligence  is  founded  upon  a  com- 
parison or  the  negligence  bf  the 
plaintiff's  with  that  of  the  defend- 
ant's. This  element  of  compari- 
son is  of  tlfe  very  essence  of  the 
rule.  It  must  not  only  appear 
that  the  negligence  of  the  plain- 
tiff is  slight  and  that  of  the  de- 
fendant gross,  but  also  tliat  they 
are  so  when  compared  with  each 
other."  Moody  v.  Peterson,  11 
111.  App.  180. 

This  instruction  has  been  held 
to  be  correct:  "If  they  find,  from 
the  evidence,  that  the  plaintiff 
was  guilty  of  some  negligence,  but 
that  the  defendant  was  guilty  of 
gross  negligence  contributing  to 
such  injury,  and  that  the  plain- 
tiff's negligence  was  slight  as 
compared  with  the  negligence  of 
the  defendant,  still  she  may  be 
entitled  to  recover."  City  of  Chi- 
cago V.  Stearns,  105  111.  554. 

See  generally  on  the  subject  of 
this  section,  Chicago,  etc.,  R.  Co. 


V.  Triplett,  38  III.  482;  Illinois, 
etc.,  R.  Co.  V.  Hetherington,  83 
111.  510;  Chicago,  etc.,  R  Co.  v. 
Lee,  68  111.  576;  Terre  Haute,  ets., 
R.  Co.  V.  Voelker,  31  111.  App.  314; 
Chicago,  etc.,  R.  Co.  v.  Dewey,  26 
111.  255;  Galena,  etc.,  R.  Co.  v. 
Jacobs,  20  111.  -iTS;  Chicago,  etc., 
R.  Co.  V.  Hogarth,  38  111.  370. 

The  capacity  of  plaintiff  had  to 
be  considered  in  determining  the 
degree  of  his  negligence.  Kerr  v. 
Forque,  54  111.  482. 

"Parmelee  v.  Farro^  22  111.  467; 
Peoria,  etc.,  Ry.  Co.  v.  Miller,  li 
111.  App.  375 ;  Springfield,  etc.,  Ry. 
Co.  V.  DeCamp,   11   111.  App.  475. 

•«  Toledo,  etc.,  R.  Co.  v.  Cline, 
135  111.  41;  25  N.  E.  Rep.  846; 
Chicago,  fete,  Ry.  Co.  v.  Dun- 
leavy,  129  111.  132;  22  N.  E.  Rep. 
15. 

®'  Chicago,  etc.,  R.  Co.  v.  Haz- 
zard,  26  111.  373;  Chicago,  etc.,  R. 
Co.  v.  Dewey,  26  111.  255 ;  Chicago, 
etc.,  R.  Co.  V.  Gretzner,  46  111.  74; 
Chicago,  etc.,  R.  Co.  v.  Simmons. 
38  111.  242;  Illinois,  etc.,  R.  Co.  v. 
Slatton,  54  111.  133;  Ohio,  etc.,  R. 
Co.  V.  Shonefelt,  47  111.  497;   Chi- 


162  FEDERAL   EMPLOYERS*   LL\BILITY    ACT. 

view  of  these  distinctions  and  requirements,  one  of  the  appel- 
late courts  was  justified  in  its  use  of  the  following  statement 
concerning  negligence  as  administered  in  the  courts  of  Illi- 
nois: "The  doctrine  of  comparative  negligence,  as  applied  to 
eases  where  the  injury  is  ifot  willful,  seems  to  be  shorn  of 
£fll  practical  meaning.  A  plaintiff  can  in  no  case  recover 
unless  he  hfls  used  ordinary  care,  no  matter  how  gross  the 
negligence  of  the  defendiant,  while  if  he  used  ordinary  care, 
his  whole  duty  has  been  performed,  and  a  comparison  of 
his  conduct  with  that  of  'the  defendant  as  to  the  question 
of  negligence  would  seem  useless. ' ' ''° 

§  98.    Plaintiff's  negligence  compared  with  defendant's. — 

Slight  negligence  on  the  part  of  the  plaintiff,  in  comparison 
with  that  of  the  defendant's,  did*  not  defeat  the  plaintiff  in 
his  cause  of  action.  In  determining  whether  or  not  the  neg- 
ligence of  the  plaintiff  had  been  slight,  that  of  the  defendant 
had  first  to  be  ascertained,  and  then  the  comparison  be  made. 
It  is  readily  seen  that  the  same  negligence  of  the  plaintiff 

cago,  etc.,  R.   Oo.  v.   Cass,  73   111.  the  base  of   the   car  window,   and 

394;  Kepperly  v.  Ramsden,  83  111.  slightly      project      outside,      and 

354.  thereby    had    his    arm    broken    in 

"Illinois     Central     R.     Co.     v.  passing  a  freight  train  on  an  ad- 

Trowbridge,  31   111.  App.   190.  joining  track,   his   negligence   was 

Referring  to  an  instance  where  held  slight  as  compared  with  that 

the  deceased's  negligence  had  been  of   the    railroad   company    in   per- 

slight  and   that   of  the   defendant  mitting   it     freight  cars   to   stand 

reckless,   the   Supreme   Court  said  so  near  the  track  of  its  passenger 

of   such    deceased's   conduct.    "His  train,    and    he    could    recover    for 

carelessness    may    iiavo    been     in-  his  injuries.     Chicago,  etc.,  R.  Co. 

duced    by    the    presumption    that  v.  Pondrom,  51  111.  333. 

those     persons      [defendant's     em-  Slight   negligence    is   not    slight 

ployes]     would     do     their     duty."  want  of  ordinary  care,  but  merely 

Chicago,    etc.,   R.    Co.   v.    Triplett,  want    of   extraordinary    care,    and 

38    III.   482;    Illinois,   etc.,   R.   Oo.  did  not  prevent  a  recovery.     Grif- 

V.  Ilftherington,  83   111.  510.  fin  v.  Willow,  43  Wis.  50o";  Dreher 

"CirnsH    negligence    is    the    want  v.   Fitchburg,   22   Wis.  675;    Ward 

of  slight  care."     Chicago,   etc.,  R.  v.     Milwaukee,    etc.,    Ry.    Co.    29 

Co.  V.  Johnson,  103  111.  512.  Wis.    144;    Hammond   v.    Mukwa, 

Where  a  passenger  on  a  railroad  40  Wis,  35. 
car   [)ermittcd  his  arm   to   rest  on 


CONTRIBUTORY    AXD    COMPARATIVE    NEGLIGEXCK.       j[63 

in  one  instance  might  be  slight  negligence,  while  in  another 
it  would  be  more  than  slight,  and  defeat  him.  "Although 
the  plaintiff  may  be  guilty  of  some  degree  of  negligence, 
yet  if  it  is  but  slight  as  compared  with  that  of  the  defendant, 
the  plaintiff  shall  be  allowed  to  recover. "  '^^  "  This  rule  ap- 
plies even  where  the  slight  negligence  of  the  plaintiff  in  some 
degree  contributed  to  the  injury."''^  In  a  subsequent  ease, 
in  reviewing  the  doctrine  as  announced  in  Jacob's  case,"  it 
was  said :  ' '  That  the  question  of  liability  did  not  depend  ab- 
solutely on  the  absence  of  all  negligence  on  the  part  of  the 
plaintiff,  but  upon  the  relative  degree  of  care  or  want  of 
care  as  manifested  by  both  parties,  for  all  care  or  negligence 
is,  at  best,  but  relative,  the  absence  of  the  highest  possible 
degree  of  care,  showing  the  presence  of  some  negligence,  slight 
as  it  may  be.  The  true  doctrine,  therefore,  this  court  thought 
was,  that  in  proportion  to  the  negligence  of  the  defendant 
should  be  measured  the  degree  of  care  required  of  the  plain- 
tiff. The  degrees  of  negligence  must  be  measured  and  con- 
sidered, and  whenever  it  shall  appear  that  the  plaintiff's 
negligence  is  comparatively  slight,  and  that  of  the  defendant 
gross,  the  plaintiff  shall  not  be  deprived  of  his  action."^* 


"Coursen  v.  Ely,  37  111.  338.  51   111.   333;    Illinois   Cent.  E.  Co. 

"Coursen  v.  Ely,  37  111.  338.  v.    Backus,   55    111.    379;    Chicago, 

'» Galena,  etc.,  R.  Co.  v.  Jacobs,  etc.,  R.  Co.  v.  Dignan,  56  111.  487; 

20  111.  478.  Chicago,  etc.,  R.  Co.  v.  Gravy,  58 

"Chicago,  etc.,  R.  Co.  v.   Swee-  111.    83;    Chicago,    etc.,    R.    Co.    v. 

ney,  52  111.  325.  Dunn,    61    111.    384;    Indianapolis, 

"No   inflexible  rule   "an  be   laid  etc.,  R.  Co.  v.  Stables,  62  111.  313; 

down.      Each    case    must    depend  Chicago,   etc.,   R.   Co.   v.    Still,    19 

upon      its      own      circumstances."  111.    499;    Illinois,   etc.,    R.   Co.   v. 

Chicago,   etc.,   R,   Co.  v.   Sweeney,  Middlesworth,     43     111.     64;      St. 

52  111.  325;  Chicago,  etc.,  R.  Oo.  v.  Louis,  etc.,  R.  Co.  v.  Manly.  58  111. 

Triplett,  38  111    482 ;  Chicago,  etc.,  300:   Toledo,  etc..  Ry.  Co.  v  Spencer, 

R.    Co.    V.    Gretzner,    46    111.    74;  66  111.   528:    Illinois  Cent.  R.   Co. 

Coursen  v.   Ely,  37   111.  338;    Chi-  v.    Maffit.    67    111.    431;     Chicago, 

cago,  etc.,   R.   Co.   v.    Hogarth,  38  etc.,  R.  Co.  v.  Payne,  59  111.  534; 

111.  370;  Illinois  Central  R.  R.  Co.  Chicago,  etc.,  R.  Co.  v.  Van  Pat- 

V.  Simmons,  38  111.  242:  St.  Louis,  ten,    64    111.    510;    Peoria    Bridge, 

etc.,  R.  Co.   V.  Todd.   36   Til.   409;  etc.,  v.  Loomie,  20  111.  236;    Ohio, 

Chicago,  etc.,  R.  Co.  v.  Poudrom,  etc.,  R.   Co.   v,    Shonefelt,   47    111. 


164  FEDERAL    EMPLOYERS'    LIABILITY   ACT. 

§  99.  Willful  injury  by  defendant— Slight  negligence  of 
plaintiff. — "The  rule  of  this  court  is,  that  negligence  is  rela- 
tive, and  that  a  plaintiff,  although  guilty  of  negligence  which 
may  have  contributed  to  the  injury,  may  hold  the  defendant 
liable,  if  he  has  been  guilty  of  a  higher  degree  of  negligence, 
amounting  to  willful  injury.  The  fact  that  a  plaintiff  is 
guilty  of  a  slight  negligence,  does  not  absolve  the  defendant 
from  the  use  of  care  and  all  reasonable  efforts  to  avoid  the 
injury.  The  negligence  of  the  plaintiff  does  not  license  the 
defendant  to  wantonly  or  willfully  destroy  the  plaintiff's 
property.  Each  party  must  be  held  to  the  use  of  all  reason- 
able efforts  to  avoid  the  injury,  and  the  negligence  of  one 
party  does  not  absolve  the  other  from  diligence  and  cau- 
tion. "^^ 

§  100.  Mere  preponderance  of  negligence  against  defend- 
ant not  sufficient. — Mere  preponderance  of  negligence  on  the 
part  of  the  defendant  over  that  of  the  plaintiff's  did  not  au- 
thorize the  plaintiff  to  recover ;  and  to  say  to  the  jury  that 
the  plaintiff  might  recover  if  the  plaintiff's  negligence  were 
less  than  that  of  the  defendant  was  error,  for  that  authorized 
a  recovery  even  if  the  defendant's  negligence  merely  pre- 
ponderated over  that  of  the  plaintiff.  For  the  plaintiff 
could  recover  only  where  his  negligence  was  slight  in  com- 
parison with  that  of  the  defendant's  negligence.'^*' 

497;   Chicago,  etc.,  R.  Co.  v.  ^Nhir-  Chicago,   etc.,   R.   Co.   83   111.   405. 

ray,   62    111.    326;    Pittsburg,    etc.,  "St.  Louis,  etc.,  R.  Co.  v.  Todd, 

R.    Co.    V.    Knut?on,    69    111.    103;  36  111.  400;   Peoria,  etc.,  R.  Co.  v. 

Rockford,  etc.,  R.   Co.  v.  Hillmer,  Champ,  75  111.  577. 

72  111.   235:    Chicago,  etc.,  R.   Co.  "Chicago,   r  -.,  R.  Co.  v.  Dunn, 

V.     Mock,    72     111.     141;     Kookuk  61   111.  385;    Indianapolis,  etc.,  R. 

Packet  Co.  v.  Henry,  50  111.   264;  Co.  v.  Stables,  62  111.  313;   Illinoia 

Illinois  Cent.  R.  Co.  v.  Cragin,  71  Cent.  R.  Co.  v.  MofTit,  67  111.  431; 

HI.    177;    Toledo,   etc..   Ry.   Co.  v.  Chicago,  etc.,  R.   Co.  v.  Van  Pat- 

McGinnis,    71    111.    346;    Chicago,  ten,  64  111.   510;    Chicago,  etc.,  R. 

etc.,  R.  Co.  V.  Cass,   73  111.   394;  Co.  v.  Lee,  68  111.  576;    Chicago, 

Cliicago,  etc.,  R.   Co.   v.   Do^-hue,  etc.,   R.    Co.   v.   Lee,   60   111.    501; 

75  Til.   106;    Toledo,  etc.,  Ry.   Co.  Chicago,  etc.,  R.  Co.  v.  Mock,  72 

V.  OT'Dnnor.  77  111.  301;  Kcwanee  HI.    14L 
V.  Depew,  80  HI.  119;   Schmidt  v. 


CONTRIBUTORY    AND    COMPARATIVE    NKGLIGKNCE,      IQ^ 

§  101 — Jury  must  compare  the  negligence  of  the  defendant 
with  that  of  the  plaintiff. — It  was  for  the  jury  to  determine 
whether  the  plaintiff's  negligence  was  slight  in  comparison 
with  that  of  the  defendant,  or  whether  it  w^as  equal  or  greater. 
They  had  to  compare  the  degrees  of  negligence.  And  it  was 
proper  to  instruct  the  jury  that  if  the  plaintiff  had  been 
guilty  of  unreasonable  negligence,  and  the  defendant  guilty 
of  gross  negligence,  they  should  find  for  the  latter."  And 
an  instruction  limiting  a  recovery  to  the  negligence  of  the 
defendant  and  freedom  of  the  plaintiff  from  negligence  ma- 
terially contributing  to  the  injury,  was  erroneous ;  for  it  kept 
out  of  view  the  rule  of  comparative  negligence.''®  "The  gross 
negligence  of  the  defendant  is  as  indispensable  an  element 
as  the  slight  negligence  of  the  deceased;  and  it  appearing 
from  the  evidence  that  there  is  contributive  negligence  on 
the  part  of  the  plaintiff  or  the  deceased,  it  is  for  the  jury 
to  determine,  from  all  the  evidence,  the  relative  degrees  of 
the  negligence  of  the  parties,  and  unless  they  be  satis- 
fied that  of  the  plaintiff  or  deceased  is  slight  and  that  of  the 
defendant  gross  in  comparison  with  each  other,  there  can  be 
no  recovery.  The  onus,  in  establishing  the  relative  degrees 
of  negligence,  is  not  thrown  on  the  defendant.''^  Neither 
party,  in  the  first  instance,  is  assumed  to  have  been  negligent. 
The  negligence  must  be  proved,  and  unless  it  appears  from 
the  proof  that  the  plaintiff's  care,  under  all  the  evidence,  is 
proved  as  alleged,  there  can  be  no  recovery."®'^ 

§  102.    Instructions  must  require  comparison. — Care  had  to 
be    used    instructing    the   jury   that    the    defendant's    negli- 

""  Illinois  Central  K.  Co.  v.  Mid-  ^9  Citing    Indianaj-olis,    etc.,    R. 

dlesworth,     43     111.     64.      Chicago,  Go.  v.  Evans,  88  111.  63. 

etc.,  R.  Co.  V.  Payne,  59  111.  534;  so  Chicago,  etc.,   R.  Co.  v.   Har- 

Chicago,    etc.,    R.    Co.    v.    Lee,    60  wood,  90  111.  425 ;  Chicago,  etc..  R. 

111.  501;   Illinois  Central  R.  Co.  v.  Co.  v.  Dimiek,  96  111.  42;   Chicago, 

Cragin,    71    111.    177;     Schmidt    v.  etc.,  R.  Co.  v.  Triplett,  38  111.  482; 

Chicago,  etc.,  R.  Co.  83  111.  405.  f,f>'.,f    ^'""^^^    ^-    ^*^™*'    ^^^ 

"Gchmidt    V.    Chicago,    etc.,    R.  "^ 
Co.   83   111.    405;    Illinois,   etc..   R. 
Co.  V.  Hetherington,  83  111.  510. 


166  FEDERAL   EMPLOYERS'    LIABILITY    ACT, 

gence  must  be  ''gross"  in  order  to  enable  the  plaintiff  to 
recover  whether  his  negligence  was  slight.  "The  jury  must 
be  told,  to  authorize  a  recovery,  it  must  appear,  from  the 
evidence,  that  the  negligence  of  the  plaintiff  is  slight  and 
that  of  the  defendant's  gross,  in  comparison  with  each  other, 
and  it  will  not  be  sufficient  simply  to  say  the  plaintiff  may 
recover,  though  negligent,  provided  his  negligence  is  slight 
in  comoarison  with  that  of  the  defendant. ' '  ^^ 

§  103.    Illustration — Engine  striking  hand  car — Unlawful 

speed. — A  case  of  collision  of  a  hand  car  and  an  engine,  il- 
lustrates somewhat  the  rule  of  comparative  negligence.  The 
collision  took  place  in  a  city,  and  at  the  time  the  engine  was 
running  at  a  speed  prohibited  by  an  ordinance,  and  no  bell 
was  rung  or  whistle  sounded.  The  laborer  was  on  the  hand 
ear,  which  those  in  charge  of  it  had  been  in  the  habit  of 
bringing  into  the  city  at  the  hour  of  the  accident.  The  ap- 
proach of  the  engine  was  concealed  from  the  view  of  those 
on  the  hand  car  on  account  of  a  curve,  and  trees  and  build- 
ings. It  was  held  that  the  negligence  of  the  railroad  com- 
pany was  gross,  and  that  of  the  deceased,  if  any,  was  slight.®^ 

§  104.  Illustration — Mail  crane  striking  fireman. — A  fire- 
man on  a  railroad  locomotive  while  passing  a  station  in  the 
night   time   was   killed   by   coming   in   contact   with   a   mail 

^  Chicago,   etc.,   R.   Co.   v.   Har-  was  erroneous.      Chicago,   etc.,   R. 

wood,    90   111.   42.5;    Illinois    Cent.  Co.    v.    Dillon,    17    111.   App.    355; 

R.    Co.   V.    Hammer,    72    111.    .351;  Moody    v.    Peterson,    11    111.    App. 

Union,  etc.,   Co.   v.   Monaghan,   1.3  180;    Pittsburg,    etc.,    Ry.    Co.    v. 

111.  App.  148;   Christian  v.  Erwin,  Shannon,  11  111.  App.  222;  Union, 

22  111.  App.   534.  etc.,    Ry.   Co.   v.    Kolleher,    12   111. 

An    instruction    wliich    required  App.  400;   Chicago,  etc.,  R.  Co.  v. 

the  jury  to  find  whetlier  the   neg-  O'Connor,    13  111.  App.  02.     As  to 

ligence  of  the  plaiiitilF  was  sliglit  practice    in    Illinois    in   giving    in- 

and    that   of    the    defendant   gross,  structicms  concerning  comparative 

but  did  not  require  tliem   to  com-  negligence,    see   Cliicago,   etc.,    Ry. 

pare  the  negligence  of  tlie  respect-  Co.  v.  Dimick,  96  111.  42. 

ive    parties,    and    determine    from  "^Toledo,  etc.,   R.   Co.  v.  O'Con- 

8uch  comparison  whether  the  one  nor,  77   HI.  391. 
was   slight    and    the   other    gross, 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGKNCK.       IQ-J 

crane  or  catcher  near  the  main  track.  He  was  looking 
out  for  signals  when  struck.  Two  other  accidents  had 
previously  occurred  from  the  same  cause,  both  of  which 
the  company  had  notice.  It  was  held  that  the  company  was 
guilty  of  gross  negligence ;  and  there  might  be  a  recovery 
even  if  the  fireman  had  been  guilty  of  negligence  in  leaning 
out  from  the  sideway  while  looking  for  signals,  his  negligence 
in  that  regard  being  slight  in  comparison  with  that  of  the 
company.^^ 

§  105.    Admiralty  suits— Apportionment  of  damages. — The 

strict  rules  of  the  common  law  do  not  apply  to  suits  in  admir- 
alty to  recover  damages  for  injuries  inflicted.  Admiralty 
courts  have  alw^ays  refused  to  be  bound  by  the  rules  of  that  law 
with  respect  to  contributory  negligence.  Where  both  parties 
have  been  guilty  of  negligence,  the  damages  are  apportioned 
between  them,  usually  divided  equally,  so  that  the  plaintiff 
or  defendant  will  recover  only  one-half  the  amount  of  dam- 
ages he  has  suffered.^*    While  the  general  rule  is  to  give  the 

«» Chicago,   etc.,  R.  Co.  v.  Greg-  Fed.   Rep.    135;    The   Max   Morris, 

ory,  58  111.  272.  24    Fed.    Rep.    860     (affirmed,    28 

»*The  Schooner  Catharine,  17  Fed.  Rep.  881);  The  Daylesford, 
How.  170;  15  L.  Ed.  233;  Peters-  30  Fed.  Rep.  633;  The  Joseph 
field  V.  The  Judith,  Abbott  on  Stickney,  31  Fed.  Rep.  156;  the 
Shipping,  231;  The  Celt,  3  Hagg.  Lackawanna,  151  Fed.  Rep.  499; 
328h;  The  Washington,  5  Jurist,  The  Max  Morris,  137  U.  S.  1 ;  11 
1067;  The  Fiends,  4  E.  F.  Moore,  Sup.  Ct.  Rep.  29;  Rogers  v. 
314,  322;  The  Seringa patam,  5  N.  Steamer  St.  Charles,  19  How.  108; 
of  C.  61,  66;  Vaux  v.  Salvador,  4  15  l.  Ed.  563;  Chamberlain  v. 
Ad.  &  El.  431;  The  Monarch,  1  Ward,  21  How.  548;  16  L.  Ed. 
Wm.  Rob.  21;  The  Dr.  Cock,  5  oil;  affirming  Fed.  Cas.  No. 
Mon.  L.  Mag.  303;  The  Oratava,  5  17.15I;  The  Washington,  9  Wall. 
Hon.  L.  Mag.  45,  362;  Atles  v.  513.  19  i,.  Ed.  787;  The  Sap- 
Packet  Co.  21  Wall.  389;  22  L.  Ed.  phire,  11  Wall.  164;  20  L.  Ed. 
619,  reversing  2  Dill,  479;  Fed.  127;  The  Ariadne,  13  Wall.  475; 
Cas.  No.  10341;  The  City  of  20  L.  Ed.  542 ;  reversing  7  Blatchf. 
Carlisle,  39  Fed.  Rep.  807;  The  211;  Fed.  Cas.  No.  525;  The  Con- 
City  of  Alexandria,  17  Fed.  Rep.  tinental.  14  Wall.  345;  20  L.  Ed. 
390;  Anderson  v.  The  Ashbrooke,  801;  reversing  8  Blatchf.  33;  Fed. 
44  Fed.  Rep.  124;  The  Serapis,  49  Cas.  No.  3.141;  The  Teutonia.  23 
Fed.  Rep.  393;  The  Wanderer,  '^l  Wall.  77:  23  L.  Ed.  44;  The  Sun- 
Fed.  Rep.    140;   The  Explorer,  21  nyside,   91   U.   S.  208;    23  L.  Ed. 


168 


FEDERAL   EMPLOYERS     LIABILITY    ACT. 


plaintiff  only  half  his  damages  when  he  contributed  to  the 
injury,  yet  the  rule  is  not  an  inflexible  one  as  to  the  amount, 
and  only  a  third  has  been  allowed,  interpreting  the  rule  for 
a  division  according  to  the  respective  fault  of  the  parties.*" 
Even  gross  fault  does  not  change  the  general  rule.*^  This 
rule  has  been  applied  to  cases  of  personal  injury  of  seamen 
after  an  exhaustible  examination  of  the  question.^^ 


302;  reversing  Brown,  Ad.  Cas. 
227;  Fed.  Cas.  No.  13,620;  The 
America,  92  U.  S.  432;  The 
Juniata,  93  U.  S.  337;  23  L.  Ed. 
930;  The  Stephen  Morgan,  94  U. 
S.  599;  23  L.  Ed.  930;  The 
Virginia  Ehrman,  97  U.  S.  309; 
24  L.  Ed.  890;  The  City  of 
Hartford,  97  U.  S.  323;  24  L.  Ed. 
930:  11  Blatchf.  72;  Fed.  Cas.  No. 
2,752;  The  Civilta,  103  U.  S.  699; 
26  L.  Ed.  599;  6  Ben.  309;  Fed. 
Cas.  No.  2,775;  The  Connecticut, 
103  U.  S.  710;  26  L.  Ed.  467; 
The  North  Star,  106  U.  S.  17;  1 
Sup.  Ct.  Rep.  41;  affirming  8 
Blatchf.  209;  Fed.  Cas.  No. 
10,331;  The  Sterling,  106  U.  S. 
647;  1  Sup.  Ct.  Rep.  89;  27  L. 
Ed.  98;  The  Manitoba,  122  U.  S. 
97;  7  Sup.  Ct.  Rep.  1158;  90  L. 
Ed.  1095;  The  Columbia,  27  Fed. 
Rep.  238;  The  James  D.  Leacy, 
110  Fed.  Rep.  685  (affirmed,  113 
Fed.  Rep.  1019;  51  C.  C.  A.  620)  ; 
The  Providence,  98  Fed.  Rep.  133; 
38  C.  C.  A.  070;  The  New  York, 
175  U.  S.  187;  20  Sup.  Ct.  Rep. 
67;  44  L.  Ed.  126,  reversing  27 
C.  C.  A.  154;  54  U.  S.  App.  248; 
82  Fed.  Rep.  819;  Steam  Dredge 
No.  1,  134  Fed.  Rep.  161;  67  C. 
C.  A.  67;  69  L.  R.  A.  293  (deny- 
ing the  applicability  of  the  doc- 
trine of  Davies  v.  Mann,.  10  Mes. 
&  Wils.  546);  The  William  Mur- 
tagh,  17  Fed.  Rep.  259;  The 
Bordentown,  16  Fod.  Rep.  270; 
The  .Jeremiah  Godfrey,  17  Fed. 
R<'p.     738;      The     Monticello,     15 


Fed.  Rep.  474;  The  B.  &  C,  18 
Fed.  Rep.  543;  The  M.  J.  Cum- 
mings,  18  Fed.  Rep.  178;  The 
Syracuse,  18  Fed.  Rep.  828;  Mem- 
pliis,  etc.,  Co.  V.  Yager,  etc.,  Co. 
10  Fed.  Rep.  395;  Mason  v.  Steam 
Tug,  3  Fed.  Rep.  404;  The  Wil- 
liam Cox,  9  Fed.  Rep.  672;  Con- 
nolly V.  Ross,  11  Fed.  Rep.  342; 
The  David  Dowe,  16  Fed.  Rep. 
154;  Christian  v.  Van  Tassel,  12 
Fed.  Rep.  884,  890;  The  Explorer, 
20  Fed.  Rep.  140;  The  E.  B, 
Ward,  20  Fed.  Rep.  702;  The  Ma- 
bel Comeaux,  24  Fed.  Rep.  490; 
The  Mystic,  44  Ted.  Rep.  399;  The 
Frank  and  Willi--.  45  Fed.  Rep. 
405;  The  Nathan  Hale,  48  Fed. 
Rep.  700;  The  Julia  Fowler,  49 
Fed.  Rep.  279;  The  Serapis,  49 
Fed.  Rep.  396;  The  J.  &  J.  Mc- 
Carthy, 55  Fed.  Rep.  86;  The 
Cyprus,  65  Fed.  Rep.  333;  Wm. 
Johnson  &  Co.  v.  Johnson,  86  Fed. 
Rep.  888;  The  Lackawanna,  151 
Fed.  Rep.  499. 

"The  Mary  Ida,  20  Fed.  Rep. 
741. 

««The  Pegasus,  19  Fed.  Rep. 
46;  The  IMaria  Martin,  12  Wall. 
31;  20  L.  Ed.  251;  affirming  2 
Biss.   41;    Fed.  Cas.  No.  9,079. 

"  Olson  V.  Flavel,  34  Fed.  Rep. 
477  (distinguishing  The  Claren- 
don, 6  Sawy.  544;  4  Fed.  Rep. 
049.  and  Holmes  v.  Railway  Co. 
6  Sawy.  262:  5  Fed.  Rep.  523); 
The  Max  Morris.  137  U.  S.  1;  11 
Sup.  Ct.  Rep.  29;   34  L.  Ed.  586; 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ^QQ 


§106.  Origin  of  admiralty  rule. — "The  rule  of  admiralty 
in  collisions,"  said  Judge  Wallace,  "apportioning  the  loss  in 
case  of  mutual  fault,  is  peculiar  to  the  maritime  law.  It  is 
not  derived  from  the  civil  law,  which  agrees  with  the  com- 
mon law  in  not  allowing  a  party  to  recover  for  the  negli- 
gence of  another  where  his  own  fault  has  contributed  to  the 


affirming  24  Fed.  Rep.  860,  and 
28  Fed.  Rep.  881.  See  The 
Daylesford,  30  Fed.  Rep.  633; 
The  Joseph  Stickney,  31  Fed. 
Rep.    156. 

"We  think  tlie  rule  dividing  the 
loss,  the  most  just  and  equitable, 
and  as  best  tending  to  induce  care 
and  vigilance  on  both  sides  in 
navigation."  Schooner  Catharine 
V.  Dickinson,  17  How.  170;  15  L. 
Ed.  233;  The  Mary  Patten,  2 
Low.  196. 

"As  the  Saxe  thus  contributed 
to  the  collision,  I  must  hold  her 
also  in  fault,  and  order  the  dam- 
ages to  be  divided,  and  a  decree 
will  be  entered  accordingly."  The 
Ant,  3  Fed.  Rep.  294.  See  Vessel 
Owners'  Towing  Co.  v.  Wilson,  63 
Fed.  Rep.  630;  24  U.  S.  App.  49; 
The  Edward  Luckenbach,  94  Fed. 
Rep.  545;  Belden  v.  Chase,  150 
U.  S.  691;  14  Sup.  Ct.  Rep.  269; 
37  L.  Ed.  1218,  reversing  117  N. 
Y.  637;  22  N.  E.  Rep.  963; 
The  Victory,  68  Fed.  Rep.  400; 
25  U.  S.  App  271. 

Senator  Piles:  "The  rule  of  ad- 
miralty is  this,  as  it  has  been  de- 
cided by  the  Supreme  Court  of 
the  United  States:  That  if  an  in- 
jury occurs  on  board  ship,  or  one 
wliich  has  relation  to  the  courts 
of  admiralty,  the  court  divides 
the  damages  between  the  ship  and 
the  person  who  received  the  in- 
jury. It  is  not  necessary  that 
the  master  should  have  seen  the 
accident;     that    he     should     have 


stood  there,  or  that  any  one  rep- 
resenting the  master  of  the  ship 
was  pi-esent.  If  the  hold  of  the 
ship  is  left  open,  and  a  seaman 
on  board  that  ship,  through  his 
own  negligence,  in  the  absence  of 
the  master,  carelesslj'  passes  along 
the  deck  and  falls  into  an  un- 
lighted  hold  or  hatchway,  he  can 
recover  damages  against  the  ship 
in  an  action  in  rem  for  whatever 
he  may  be  entitled  to,  deducting 
therefrom,  as  the  court  will,  the 
amount  the  court  thinks  should 
be  deducted  by  reason  of  his  own 
negligence.  In  other  words,  the 
court  will  find  in  an  admiralty 
case,  under  the  circumstances  I 
have  stated,  and  altogether  in  the 
absence  of  the  master,  the  amount 
of  damages  the  complainant  or 
libelant  is  entitled  to.  If  it  be 
$10,000,  and  the  court  finds  that 
one-half  of  that  was  the  result  of 
the  libelant's  own  negligence,  and 
the  other  half  was  the  result  of 
the  negligence  of  the  ship,  the 
master  or  mate,  then,  on  account 
of  his  own  contributory  negli- 
gence in  the  case,  the  court  would 
deduct  $5,000  from  the  amount 
which  the  libelant  otherwise 
would  be  entitled  to  recover.  It 
does  not  necessitate  the  presence 
of  any  one  on  board  the  ship 
representing  the  ship,  directing 
him  to  go  into  it  to  entitle  him 
to  recover."  00  Cong.  Record, 
1st  Sess.,  p.  4536. 


170  FEDERAL   EMPLOYERS'    LLiBlLITY    ACT. 

injury.  It  emanated  from  the  ancient  maritime  codes  and 
the  reasons  which  are  assigned  by  commentators  £3  commend- 
ing it  are  various  and  divergent.  According  to  Clieroe,*' 
'this  rule  of  division  is  a  rustic  sort  of  determination,  and 
such  as  arbiters  and  amicable  compromisers  of  dispute  com- 
monly follow  where  they  cannot  discover  the  motives  of  the 
parties,  or  where  they  see  fault  on  both  sides.'  He  thought 
its  object  was  to  prevent  owners  of  old  and  worthless  ships 
from  getting  them  run  down  on  purpose,  in  order  to  found  a 
claim  for  excessive  damage.  Mr.  Bell  defends  the  rule  upon 
expediency,  'because,'  he  says,  'there  appears  to  be  no  suffi- 
cient protection,  without  some  such  rule,  for  weak  ships 
against  stronger  and  larger  ships,  the  masters  and  crews  of 
which  will  undoubtedly  be  more  careless  when  they  know  that 
there  is  little  risk  of  detection  and  none  at  all  of  direct  dam- 
age to  their  vessel,  by  which  a  smaller  ship  may  be  run  down 
without  any  injury  to  the  assailant.'  Lord  Denman  ^®  says, 
'It  grows  out  of  an  arbitrary  provision  in  the  law  of  nations, 
from  views  of  general  expediency,  not  as  dictated  from 
natural  justice,  nor,  possibly,  quite  consistent  with  it.'  By 
the  laws  of  most  of  the  maritime  states  the  rule  was  applied 
indiscriminately  in  collisions  where  both  vessels  were  to  blame, 
where  neither  was  to  blame,  and  when  the  blame  could  not  be 
detected.  In  a  recent  article  in  the  Law  Quarterly  Review,^" 
Mr.  Mersden  traces  the  history  of  the  recognition  of  the  gen- 
eral maritime  law  on  this  subject  by  the  English  admiralty 
courts,  and  shows  that  in  the  earlier  cases  the  rule  of  division 
of  loss  was  applied  where  there  was  no  fault  in  either  ship, 
and  when  the  cause  of  collision  was  uncertain,  as  well  as  in 
cases  where  both  ships  were  in  fault.  Since  The  Woodrop 
Sims  case  ®^  the  rule  has  only  been  applied  in  the  case  of  both 
ships  in  fault;  and,  as  thus  applied,  is  now  adopted  as  a  part 
of  the  general  municipal  law  of  England  by  the  Judicature 
Act  of  1873.'"'- 

•*!   P.f'll.  Omim.    (.5tli  Ed.)   r^H\.  "2  Dods,  83. 

"In     Dovaux     v.     Salvador,     4  »=  The  Max  Morris,  24  Fed.  Rep. 

Adal.  &  El.  420.  800;    anirnicd,   28    Fed.    Rep.    881; 

•".July,    IHHf),  Vol.   2,   p.   'MV?.  and  alTirmed  on  appeal  to  the  Su- 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       I'JI 

§  107.  Rule  in  admiralty  commended.— This  rule  of  the 
admiralty  court  has  been  comnieuded  by  the  Supreme  Court 
of  the  United  States  in  the  following  language:  "But  the 
plaintiff  has  elected  to  bring  his  suit  in  an  admiralty  court, 
which  has  jurisdiction  of  the  case,  notwithstanding  the  con- 
current right  to  sue  at  law.  In  this  court  the  course  of 
proceedings  is  in  many  respects  different,  and  the  rules  of 
decisions  are  different.  The  mode  of  pleading  is  different, 
the  proceedings  more  summary  and  informal,  and  neither 
party  has  a  right  to  trial  by  jury.  An  important  difference 
as  regards  this  case  is  the  rule  for  estimating  the  damages. 
In  the  common  law  court  the  defendant  must  pay  all  the 
damages  or  none.  If  there  has  been,  on  the  part  of  the 
plaintiff,  such  carelessness  or  want  of  skilll  as  the  common 
law  would  esteem  to  be  contributory  negligence,  they  can 
recover  nothing.  By  the  rule  of  the  admiralty  court,  where 
there  has  been  such  contributory  negligence,  or.  in  other 
words,  where  both  have  been  in  fault,  the  entire  damages  re- 
sulting from  the  collision  must  be  equally  divided  between 
the  parties.  This  rule  of  the  admiralty  commends  itself 
quite  as  favorably  in  securing  practical  justice,  as  the  other; 
and  the  plaintiff,  who  has  the  selection  of  the  forum  in  which 
he  will  litigate,  cannot  complain  of  the  rule  of  that  forum. 
It  is  not  intended  to  say  that  the  principles  which  determine 
the  existence  of  mutual  fault,  on  which  the  damages  are 
divided  in  admiralty,  are  precisely  the  same  as  those  which 
establish  contributory  negligence  at  law  that  would  defeat 
the  action.     Each  court  has  its  own  set  of  rules  for  deter- 

preme  Court,  137  U.  S.  1;  11  cause  or  proceeding  for  damages 
Sup.  Ct.  29;  34  L.  Ed.  586;  af-  arising  out  of  a  collision  between 
firming  28  Fed.  Rep.  881;  The  two  ships,  if  both  ships  shall  be 
Wanderer,  21  Fed.  Rep.  140;  The  found  to  have  been  in  fault,  the 
Explorer,  21  Fed.  Rep.  135.  The  rule  in  force  in  the  Courts  of  Ad- 
Statute  of  England  referred  to  is  miralty.  so  far  as  they  have  been 
Sub-div.  9,  Sec.  25,  Chap.  66  of  36  at  variance  with  the  rules  in 
and  37  Vict.  (L.  R.  8,  Stat.  321),  force  in  the  Courts  of  Common 
and   is   as   follows:    "(9)    In   any  Law,  shall  prevail." 


172 


FEDERAL   EMPLOYERS     LLVBILITY    ACT. 


mining  these  questions,  which  may  be  in  some  respects  the 
same,  but  in  others  vary  materially."-'^ 

§  108.  Difficulty  of  apportioning  damages. — In  an  early 
Kansas  case  Justice  Brewer  refers  to  the  difficulty  of  appor- 
tioning the  damages  between  the  parties  where  both  are 
guilty  of  negligence  contributing  to  the  injury.  "Logically," 
says  he,  "the  wrongdoer  should  always  compensate,  and  the 
\\Tong  and  the  injury  always  entitle  to  relief.  When  the 
wrong  of  both  parties  contributes  to  the  injury,  the  law  de- 
clines to  apportion  the  damages,  and  so  leaves  the  injured 
party  without  any  compensation.  This  is  not  strictly  justice. 
The  wrongdoer  causing  the  injury  ought  not  to  be  released 
from  making  any  compensation,  simply  because  the  injured 


"Atlee  V.  Packet  Co.  21  Wall. 
389;  22  L.  Ed.  619,  reversing  2 
Dill.  479;   Fed.  Cas.  No.   10,341. 

"In  cases  of  marine  torts,  courts 
of  admiralty  are  in  the  habit  of 
giving  or  withholding  damages 
upon  enlarged  principles  of  jus- 
tice and  equity,  and  have  not  cir- 
cumscribed tliemselves  within  the 
positive  boundaries  of  mere  mu- 
nicipal law;"  and  "they  have  ex- 
ercised a  conscientious  discretion 
upon  the  subject."  Justice  Story 
in  The  Marianna  Fh)ra.  11  Wheat. 
1;  6  L.  Ed.  405;  affirming  3 
Mason,   116;    Ee'*.    Cas.  No.   9,080. 

"The  moiety  rule  in  collision 
cases  was  adopted,"  said  Justice 
Bradley,  "for  the  better  distri- 
bution of  justice  among  mutual 
wrongdoers."  The  Alabama,  92 
U.  S.  695;  23  L.  Ed.  763;  re- 
versing 11  Hlatchf.  482;  Fed.  Cas. 
No.   123. 

"I'ndcr  the  circumstances  at- 
t*'nding  tliese  disasters,  in  case  of 
mutual  fault,  we  think  the  rule 
dividing  tlie  loss  the  most  just 
and  ('(pi liable,  and  as  best  tending 


to  induce  care  and  vigilance  on 
both  sides  in  navigation."  The 
Catjiarine,  17  How.  170;  15  L. 
Ed.  233. 

"The  more  equal  distribution 
of  justice,  the  dictates  of  human- 
ity, the  safety  of  life  and  limb, 
and  the  public  good  will,  I  think, 
be  clearlj'  best  promoted  by  hold- 
ing vessels  liable  to  bear  some 
part  of  the  actual  pecuniary  loss, 
where  their  fault  is  clear,  pro- 
vided that  the  libelant's  fault, 
though  evident,  is  neither  willful 
nor  gross,  nor  inexcusable,  and 
where  the  other  circumstances 
present  a  strong  case  for  his  re- 
lief. Such  a  rule  will  certainly 
not  diminish  the  care  of  laborers 
for  their  own  safety,  while  it  will 
surely  tend  to  quicken  the  atten- 
tion of  the  owners  and  masters 
of  vessels  towards  providing  al 
needful  means  for  the  safety  o: 
life  and  limb."  The  Max  Morris. 
24  Fed.  Rep.  861;  affirmed  137 
U.  S.  1;  11  Sup.  Ct.  Rep.  29;  35 
L.  Ed.  586;  The  Scandinavia,  156 
P^ed.  Rep.  403. 


CONTRIBUTORY    AMD    COMPARATIVE    NEGLIGENCE.       ^73 

party  is  also  a  wrongdoer,  and  helped  to  produce  the  injury. 
But  many  considerations,  especially  the  difficult}^  of  appor- 
tioning the  damages  and  determining  to  what  extent  the 
wrong  of  the  respective  parties  was  instrumental  in  causing 
the  injury,  uphold  the  rule  so  universally  recognized,  that 
where  the  wrong,  the  negligence  of  both  parties,  contributes 
to  the  injury,  the  law  will  not  afford  relief. ' '  ^* 

§  109.  Assumption  of  risk. — If  the  servant  has  assumed  the 
ris"k  in  the  performance  of  the  act  wherein  he  was  injured, 
and  the  defendant  is  not  otherwise  negligent,  then  such  serv- 
ant cannot  recover;  and  the  doctrine  of  comparative  negli- 
gence, or  a  division  of  damages  in  admiralty  cases,  has  no 
place  in  the  case.®^ 

§  110.  Contributory  negligence  does  not  prevent  a  recovery 
— How  damages  are  apportioned.— By  examination  oi  the 
cases  cited  in  the  foregoing  sections  it  will  be  perceived 
that  while  the  Georgia  and  Illinois  cases  are  analogous,  they 
are  not  strictly  in  point  regarding  the  recovery  of  damages 
under  the  federal  statutes  where  the  plaintiff  has  been  guilty 
of  contributory  negligence;  for  that  statute  lays  down  a 
rule  that  is  broader  and  more  liberal  than  those  announced 
by  either  of  these  state  courts  or  than  is  laid  down  by  the 
several  sections  of  the  Georgia  code  when  construed  together. 
The  federal  statute  allows  a  recovery  in  all  cases  where  the 
plaintiff  has  been  guilty  of  negligence  and  the  defendant  has 
likewise  been  guilty,  both  of  their  negligent  acts  joining  and 
producing  the  injury.  When  that  fact  is  ascertained,  then 
the  sole  question  is  the  proportion  of  the  amount  of  damages 
he  has  suffered  that  the  plaintiff  is  entitled  to  recover.     It 


"Kansas     Pacific     Ry.     Co.     V.  Serapis,  51   Fed.  Rep.  92,  266;   re- 
Pointer,   14  Kan.  37.  versing  49  Fed.  Rep.  393;  The  Ma- 

»=The     Scandinavia,      156     Fed.  liarajah,    40    Fed.    Rep    784;    The 

Rep.   403;    The   Sara-toga,  94   Fed.  Henry  B.  Fiske.  141  Fed.  Rep.  188; 

Rep.    221;    36    C.    C.    A.    208,    re-  The  Carl,   18  Fed.  Rep.  655. 
versing    87    Fed.    Rep.    349;     The 


174  FEDERAL   employers'    LIABILITY    ACT. 

is  not  a  question  of  slight  and  gross  negligence,  as  ..  was  in 
Illinois;  it  is  not  a  question  of  where  the  plaintiff's  negli- 
gence began  in  order  to  constitute  it  contributory  negligence, 
as  in  Georgia.  The  rule  in  admiralty  approaches  nearer  the 
rule  of  this  statute  than  of  any  of  the  decisions  of  the  states; 
for  there  the  damages  are  apportioned  according  to  the  re- 
spective faults  of  the  two  parties.  Under  the  federal  statute 
it  becomes  the  duty  of  the  court,  if  it  is  trying  the  case,  or 
the  jury  if  that  is  the  method  (rf  trial,  according  to  the  Illi- 
nois rule,  to  compare  the  negligence  of  the  plaintiff  with 
that  of  the  defendant,  in  order  to  determine  the  quantum  of 
damages  he  is  entitled  to  recover ;  and  the  comparison  cannot 
be  made  with  some  standard  outside  the  case.  Of  course,  if 
the  defendant  has  not  been  guilty  of  negligence,  there  can  be 
no  rcovery;  and  that  question  must  always  be  the  most  vital 
and  the  controlling  one  in  the  case.  The  assumption  of  the 
risk  is  another  question  to  be  considered.  Neither  of  these 
two  rules  (except  the  failure  to  comply  with  the  provision 
of  the  statute  concerning  safe  appliances)  have  been  either 
abrogated  or  in  any  wise  changed.  If  the  plaintiff's  negli- 
gence was  as  great  as  that  of  the  defendant,  he  recovers 
one-half  of  his  damages.  So  he  may  recover  if  his  negligence 
was  greater  than  that  of  the  defendant.  But  if  he  was  not 
guilty  of  any  negligence  contributing  to  his  injuries,  then 
he  recovers  full  damages;  and  in  determining  Avhether  he 
was  guilty  of  contributory  negligence  the  entire  facts,  as 
disclosed  by  the  evidence,  must  be  considered.  The  court 
must  apportion  the  damages,  according  to  the  relative  amount 
of  the  negligence  of  the  parties,  or  the  jury  must  do  like- 
wise if  it  tries  the  case.  Necessarily  the  court  can  lay  down 
for  the  guidance  of  the  jury  only  a  general  rule  upon  the 
subject.  "For  the  apportionment  of  damages  according  to 
the  relative  fault  of  the  parties,"  said  the  Supreme  Court 
of  Georgia,  "there  seems  to  be  no  standard  more  definite 
than  the  enlightened  opinion  of  the  jury.  ""^ 

"fiporpia,    etc.,    Co.    v.    Neely,  Some     lijrlit     nia."     be     gleaned 

r)(\  Ha.   580.  from    some    Tennessee   cases.      See 


CJNTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       5^75 

§  111.  Negligence  of  plaintiff  necessary  to  concur  with 
defendants  to  produce  the  injury. — An  interesting  question 
is  this :  ' '  Suppose  the  negligence  of  the  plaintiff  was  neces- 
sary so  that  it  might  concur  with  that  of  the  defend- 
ant's negligence  in  order  to  occasion  the  injury;  can  the 
plaintiff  recover?"  It  would  seem  that  the  statute  is  broad 
enough  to  justify  a  recovery  by  the  plaintiff  of  his  damages. 
It  is  true  that  the  plaintiff  must  have  been  guilty  of  negli- 
gence, else  the  injury  would  not  have  been  occasioned;  but 
it  is  also  true  that  the  defendant  must  have  been  guilty  of 
negligence  in  order  to  occasion  the  injury.  Plaintiff's  negli- 
gence, therefore,  was  nothing  more  than  contributory  negli- 
gence of  a  grave  character ;  and  is  such  negligence  as  does  not 
prevent  a  recovery  on  his  part  for  some  of  his  damages.'^* 

§  112.  Court  cannot  lay  down  exact  rules  for  apportion- 
ment of  damages.— It  is  clear  that  courts  cannot  lay  down 
rigid  rules  for  the  apportionment  of  the  damages  in  a  par- 
ticular case.  This  is  a  fact  that  must  be  left  to  the  jury, 
practically  without  directions  The  remarks  of  Justice 
Cooley  upon   negligence  in   general  throw  some   light   upon 

Nashville,  etc.,  R.   Co.  v.  Carroll,  spirit  in  wkich  they  were  enacted. 

6   Heisk.   347;    Duch   v.   Fitzhugh,  It   is   to  be   feared   they  will   not-. 

21  Lea  (Tenn.)  307;  Hill  v.  Nash-  "The  reason  why,   in   case  of  mn- 

ville,   etc.,   R.   Co.    9   Heisk.    823;  tual,  concurring  negligence,  neither 

Smith  V.  Nashvine,  etc.,  R.  Co.  6  party     can     maintain     an     action 

Heisk.  174;   Railroad  Co.  v.  Walk-  against    the    other,'"    said    Justice 

er,     11     Heisk.    383;     Jackson    v.  strong,    of   Pennsylvania,    "is   not 

Nashville,  etc.,  R.  Co.  13  Lea,  401;  ^^^^  ^^^  ^P"g  ^^  ^\  «"«  '\^^^ 

49   Am.   Rep.   663;    Nashville    etc.,  off  against  the  wrong  of  the  other; 

R.  Co.  V.  Wheles,  10  Lea,  471;   43  l^  '^'  *^^^,  ^\^,  ^^^  '^""^^  "'^^"""^ 

A        T)        nT7     TX71  •  1  TT71  -J.  "ow    mucli    thc    damages    suffered 

Am.  Rep.  317;   Whirley  v.  White-  .        -j.  -v    .   ui      x      iiT      1   •   x-o-. 

,   TT     ,    «,/%  IS    attributable    to    the    plaintiff  i 

man,  1  Head,  610.  „ ,  ,,1^  »     tt  m        r<i      j-         An 

'  '         .  own  fault.       Hell  v.  Glanding,  42 

Erroneous     notions     that     com-  p^^    g^    ^qq 

parative  negligence  obtained  in  96*  Under'  the  Wisconsin  statute 
Kentucky  has  prevailed;  but  they  (Laws  1907,  p.  495,  c.  254)  the 
are  unfounded.  See  article  of  negligence  of  the  defendant  rail- 
Helm  Bruce,  Esq.,  in  Kentucky  road  must  be  greater  than  that 
Law  Journal  for  April,  1882,  and  of  the  plaintiff  in  order  that  there 
Kentucky,  etc.,  R.  Co.  v.  Thomas,  may  be  a  recovery  where  the  plain- 
79  Ky.  160;  42  Am.  Rep.  208.  tiff's  negligence  has  contributed  to 
It  remains  to  see  whether  the  the  injury.  Zeratsky  v.  Chicago, 
courts  will  accept  the  provisions  M.  &  St.  P.  Ry.  Co.  141  Wis.  423; 
of  the  section  quoted  at  the  be-  123  N.  W.  904. 
ginning    of    this    ct  apter    in    the 


176  FEDERAL   EMPLOYERS*   LIABILITY    ACT. 

the  subject:  "Negligence,  as  I  understand  it,"  says  he, 
"consists  in  a  want  of  that  reasonable  care  which  would  be 
exercised  by  a  person  of  ordinary  prudence,  under  all  the 
existing  circumstances,  in  view  of  the  probable  danger  of 
injury.  The  danger  is,  therefore,  one  which  must  take  into 
consideration  all  these  circumstances,  and  it  must  measure 
the  prudence  of  the  parties'  conduct  by  a  standard  of  be- 
havior likely  to  have  been  adopted  by  other  persons  of 
common  prudence.  Moreover,  if  the  danger  depends  at  all 
upon  the  action  of  any  other  person  under  a  given  set  of 
circumstances,  the  prudence  of  the  party  injured  must  be 
estimated  in  view  of  what  he  had  a  right  to  expect  from 
such  other  person,  and  he  is  not  to  be  considered  blamable 
if  the  injury  has  resulted  from  the  action  of  another  which 
he  could  not  reasonably  have  anticipated.  Thus  the  problem 
is  complicated  by  the  necessity  of  taking  into  account  the 
two  sets  of  circumstances  affecting  the  conduct  of  different 
persons;  it  is  only  to  be  satisfactorily  solved  by  the  jury 
placing  themselves  in  the  position  of  the  injured  person  and 
examining  those  circumstances  as  they  then  presented  them- 
selves to  him,  and  from  that  standpoint  judging  whether  he 
was  guilty  of  negligence  or  not.  It  is  evident  that  such  a 
problem  cannot  usually  be  one  upon  which  the  law  can 
pronounce  a  definite  sentence,  and  that  it  must  be  left  to  the 
sifting  and  determinaion  of  a  jury. ' '  '•''' 

"  Detroit,  etc.,  R.  Co.  v.  Van  more  prudent,  nor  that  the  adop- 
Steinhurg,  17  Mich.  99,  118.  See  tion  of  the  more  hazardous  was, 
Briggs  V.  Taylor,  28  Vt.  183;  under  all  the  circumstances,  as  a 
North  Pennsylvania  R.  Co.  v.  matter  of  law,  contributory  neg- 
Heileman,  49  Pa.  St.  60;  Bolton  iigence."  Hawkins  v.  Johnston, 
V.  Frink,  51  Conn.  342;  50  Am.  105  Ind.  29;  4  N.  E.  Rep.  172; 
Rep.  24;  Isbell  v.  New  York,  etc.,  Brazil,  etc.,  Co.  v.  Hoodlet,  129 
R.  Co.  27  Conn.  393;  Meesel  v.  Ind.  327;  27  N.  E.  Rep.  741; 
Lynn,  etc.,  R.  Co.  8  Allen,  234;  Cleveland,  etc.,  Ry.  Co.  v.  Patter- 
Ireland  V.  Cswego,  etc.,  R.  Co.  13  son,  37  Ind.  App.  617;  78  N.  E, 
N.  Y.  533;  Railroad  Co.  v.  Stout,  Rep.  681;  Stephens  v  American, 
17  Wall.  657:  21  L.  Ed.  745;  etc.,  Co.  38  Ind.  App.  414;  78  N. 
ifTirming  2  Dill.  294;  Fed.  Cas.  E.  Rep.  335;  Columbus,  etc..  Co. 
No.   13,504.  V.    Burke,    37    Ind.    App.    518;    77 

"The   court   could   not   say   that  X.  E.  Rep.  409. 
one   course  or   the   other   was   the 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       5^77 

§  113.  Statute  does  not  adopt  a  theory  of  slight,  ordinary 
and  gross  negligence. — Under  the  Wisconsin  statute  the  de- 
fendant's negligence  must  be  greater  than  that  of  the  plain- 
tiff's before  there  can  be  a  recovery.  If  the  negligence  of 
both  be  equal,  or  that  of  the  plaintiff  the  greater,  there  can 
be  no  recovery.  In  this  respect  it  differs  from  the  Federal 
statute ;  for  under  that  statute,  as  we  have  observed,  the 
plaintiff  may  recover  although  his  negligence  contributed 
more  to  the  injury  than  that  of  the  defendant.  In  one  case 
it  was  contended  that  the  Wisconsin  statute  called  for  the 
application  of  the  old  and  now  nearly  obsolete  rule  of 
slight,  ordinary,  and  gross  negligence,  and  that  such  degrees 
of  negligence  should  be  observed  in  comparing  as  con- 
tributing causes  the  negligence  of  the  railroad  company 
and  that  of  the  injured  person.  But  the  Supreme  Court  of 
the  state  said:  "We  discover  no  such  intent  or  provision 
in  the  law,  nor  do  we  claim  it  impracticable  to  have  the 
jury  judge  whether  the  negligence  of  the  injured  person 
contributing  to  the  cause  of  the  injury  is  slighter  or  greater 
than  that  attributable  to  the  company.  Applying  the  statute 
to  the  case  before  us,  we  cannot  accede  to  the  defendant's 
claim  that  it  would  be  mere  speculation  and  guesswork  for 
the  jury  to  attempt  to  determine  whether  the  plaintiff's 
contributory  negligence  was  slighter  or  greater  as  a  con- 
tributing cause  than  that  of  the  defendant."®^* 

§  114.  Directing  the  verdict — Due  care. — The  statute  in- 
troduces new  rules  concerning  the  directing  of  the  verdict. 
Even  the  rule  prevailing  in  Georgia  cannot  be  followed;  for 
as  we  have  seen  this  federal  statute  is  not  complicated  with 

97*  Zeratsky    v.    Chicago,    M.    &  the  jury  to  fin  i  whether  the  plain- 

St.  P.  Ry.  Co.  141  Wis.  423;    123  tiff's     negligence     was      "less     or 

N.  W.  '904.  greater"    instead    of    "slighter    or 

Under  this  statute  the  jury  is  re-  greater."     "The  word  'less'  as  here 

quired  to  specifically  find  "whether  used  conveyed  the  same  idea  to  the 

the  negligence  of  the  party  so  in  jury  as  the  word  'slighter'  as  used 

jured  was  slighter  or  greater  than  in  the  statute."     Boucher  v.  Wis- 

that  of  the  company."    It  was  held  oonsin   Central    Ky    Co.    141   Wis. 

Qot  error  to  submit  a  question  to  160;    123  N.  W.  913. 


178  FEDERAL   EMPLOYERS     LIABILITY    ACT. 

what  are  in  a  measure  antagonistic  clauses  in  different  sec- 
tions. It  does  not  require  of  the  plaintiff  the  exercise  of  due 
care;  and  if  he  did  not  use  due  care,  that  fault  of  his  only- 
goes  to  the  reduction  of  his  damages.  There  are  many  in- 
stances in  which  courts  have  laid  down  rules  applicable  to 
them  in  which  it  has  been  held  that  the  plaintiff  had  been 
guilty  of  contributory  negligence  and  so  could  not  recover. 
In  such  cases  verdicts  have  been  directed.  But  the  sole 
question  there  before  the  court  was,  "Had  the  plaintiff  been 
guilty  of  contributory  negligence?"  within  the  rules  adopted 
by  the  courts  in  the  specific  instance;  and  if  his  case  fell 
within  one  of  those  rules,  he  must  suffer  a  defeat,  and  the 
court  could  either  enter  a  non-suit  or  direct  a  verdict.  But 
these  instances  are  no  longer  applicable ;  for  the  court  cannot 
weigh  the  respective  negligence  of  the  parties.  That  is  a 
question  for  the  jury,  and  it  is  the  jury's  sole  province  to 
determine.  If,  however,  the  evidence  clearly  shows  that  the 
defendant  was  not  guilty  of  negligence,  then,  of  course,  the 
court  may  direct  the  verdict  for  him,  in  which  event  there 
would  be  no  damages  to  assess.^^^ 

880  Horton  v.  Seaboard  Air  Line  R.  the  employee  so  injured,  and  con- 
Co.  157  N.  C.  146;  72  S.  E.  958;  tributing  'in  a  greater  degree  to 
Baltimore  &  Ohio  R.  Co.  v.  ^Yhitacre  such  injury,  then  the  plaintifT  shall 
(I\Id.)  92  Atl.  1060.  The  Wisconsin  ^g  entitled  to  recover."  In  con- 
statute  requires  the  court  to  submit  to  ,  •  .-.•  „4.  X  4.  XI  O  ™ 
,,  •  ii  i-  u  xu  strumg  this  statute  the  Supreme 
the  jury  the  questions  whether  any  _       .      r  xi.       x  x         -j        «t        j 

neghgcnce    attributable    to    the    rail-  ^^"'"^  «^  ^^^  ^^^  ^^^^'-        I"  *^- 

road     defendant     "directly     contrib-  ministering    the    statute    in    court 

uted    to    the    injury,"    and,    if   such  as  they  actually  arise,  it  devolves 

negligence    is    found,    "whether    the  on  the  court  to  determine  whether 

person    injured    was    guilty    of    any  there   is   any  evidence   tending   to 

negligence    which    directly    contrib-  ^how  negligence  attributable  to  the 

uted    to    the    injury,"    and    if    the  [railroad]   company,  and  contribu- 

jury    then    hnd    the    injured    person  .                ,.               *  xu     •    •       j 

guilty     of     contributory     negligence,  tory  negligence  of  the  injured  per- 

the     court     shall     then     submit     to  ^^^  ^"'«^  proximately  contributed 

them  the  inquiry  "whether  the  neg-  to   the   injury   complained   of.     If 

ligencc!     of     the     party     so     injured  the    evidence    produced    tends    to 

was    slighter    or    greater   as    a    con-  shoAV   that  the  negbgence  of  both 

tributing   cause   to   the   injury   than  parties!  to  the  action  concurred  to 

that   of   the   company  "      It   is   fur-  produce  the  injury,  unless  the  evi- 

ther    provided     that       in     all    cases  ,            .              i               j         j-        x  j 

where   the   jury   shall    find   that   the  ''T"    '"    «?/'^«''-   «"^    undisputed 

negligence  of  the  company     *     •     •  '^^  ^o  permit  of  only  one  inference 

was   greater   than    the   negligence   of  »"  ^he  question,  it  then  becomes  a 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       I79 

§  115.  Court  telling  jury  particular  acts  constitute  con- 
tributory negligence.— But  because  the  court  cannot  direct 
the  verdict,  it  does  not  follow  that  the  court  cannot  inform 
the  jury  that  the  facts  proven  show  the  plaintiff  had  been 
guilty  of  contributory  negligence,  where  the  facts  and  in- 
ferences to  be  drawn  from  them  are  not  conflicting  as  to 
the  fact  that  contributory  negligence  existed,  or  where 
courts,  by  reason  of  a  long  line  of  like  repeated  facts  coming 
before  them  have  adopted  rules  that  as  to  the  conduct  of 
the  plaintiff  in  such  instances  the  courts  will  say,  as  a  mat- 
ter of  law.  that  the  plaintiff,  in  law,  had  contributed  to  his 
own  injuries  and  could  not  recover.     Where  the  court,  how- 


question  for  the  jury  to  determine 
whether  the  negligence  of  the  in- 
jured party  was  slighter  or  greater 
as  a  contributing  cause  to  the  in- 
jury than  attributable  to  the  com- 
pany. In  case  the  evidence  per- 
mits of  only  one  inference  it 
devolves  on  the  court  to  decide 
the  issue  as  a  matter  of  law. 
Whether  a  case  is  one  for  a  court 
or  jury  to  determine  cannot  be 
settled  by  any  general  rule  or 
classification  of  cases,  but  must  be 
determined  in  the  light  of  the  facts 
and  circumstances  of  each  partic- 
ular case.  The  question  is  not 
ascertainable  by  any  rule  of  abso- 
lute measurement,  and  it  therefore 
must  be  submitted  to  human  judg- 
ment. Zeratsky  v.  Chicago,  M. 
&  St.  P.  Ry.  Co.  141  Wis.  423; 
123  N.  W.  904;  Boucher  v.  Wiscon- 
sin Cent.  Ry.  Co.  141  Wis.  IGO; 
123  N.  W.  913;  Kiley  v.  Chicago, 
M.  &  St.  P.  R.  Co.  138  Wis.  215; 
119  N.  W.  309:   120  N.  W.  75G. 

"The  Act  of  Congress  of  1908 
clearly  forbids  a  nonsuit  to  be 
entered  in  any  case  where  there  is 
evidence  of  negligence  on  the  part 
of  the  defendant.  As  under  this 
statute   the  plaintiff   can  elect   to 


sue  in  the  state  courts,  he  has 
naturally  chosen  to  bring  his  ac- 
tion under  the  provision  of  the 
Federal  statute.  .  .  .  All  that 
is  necessary  for  us  to  say  in  this 
case  is  that  the  plaintiff  was  en- 
gagetl  in  interstate  commerce  at 
the  time  of  his  injury-,  that  there 
was  evidence  of  negligence  on  the 
part  of  the  defendant;  that  the 
plaintiff  could  elect  to  sue  in  the 
state  court,  specifying  in  his  com- 
plaint, as  he  does,  that  he  invokes 
the  protection  of  the  Federal  stat- 
ute; and  that  under  its  terms  the 
court  is  forbidden  to  direct  a  non- 
suit upon  the  ground  that  there 
is  evidence  of  contributory  negli- 
gence shown  by  the  plaintiff's  testi- 
mony, because  tlie  statute  provides 
that,  though  the  plaintiff  may  have 
been  guilty  of  contributory  negli- 
gence, it  shall  not  bar  a  recovery. 
In  directing  a  nonsuit,  therefore 
the  judge  was  guilty  of  error." 
Horton  v.  Seaboard  Air  Line  Ry. 
Co.  (X.  C.)  72  S.  E.  958.  It 
would  be  otherwise  if  the  facts  did 
not  bring  the  plaintiff  within  the 
terms  of  the  statute.  Zachary  v. 
North  Carolina  R.  Co.  I06  N.C.496; 
72  S.  E.  858. 


180  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

ever,  has  said  this  to  the  jury — not  that  the  plaintiff  could 
not  recover,  but  that  he  had  been  guilty  of  contributory 
negligence — it  can  go  no  further ;  for  then  it  becomes  the 
duty  of  the  jury  to  weigh  and  determine  the  relative  faults 
of  the  party  and  award  or  withhold  damages  accordingly. 

§  116.  Rules  of  contributory  neglig-ence  must  be  consid- 
ered.— The  well  known  rule  concerning  what  is  and  what  is 
not  contributory  negligence  must  be  considered,  and  the  law 
applicable  thereto  constantly  be  borne  in  mind.  They  cannot 
be  ignored.  The  statute  in  no  way  modifies  them,  except  in 
the  proviso  when  the  defendant  has  violated  a  statute 
"enacted  for  the  safety  of  employe."  If  the  injury  was 
inflicted  by  the  failure  of  the  defendant  to  comply  with  such 
a  statute,  then  he  cannot  be  held  to  have  been  guilty  of  con- 
tributory negligence. 

§  117.  Injury  occasioned  by  defendant  having  violated  a 
safety  device  statute. — The  section  quoted  at  the  beginning 
of  this  chapter  expressly  provides,  "That  no  employe  who 
may  be  injured  or  killed  shall  be  held  to  have  been  guilty  of 
contributory  negligence  in  any  case  where  the  violation  by 
such  common  carrier  of  any  statute  enacted  for  the  safety 
of  employes  contributed  to  the  injury  or  death  of  such  em- 
ploye." A  subsequent  section  of  this  statute  provides  that 
the  employe  cannot  be  held  to  have  assumed  the  risk  where 
he  is  injured  or  killed  by  the  violation  by  the  defendant  of 
any  statute  imacted  for  the  safety  of  employes  contributive  to 
such  injury  or  death. 

§  118.  Presenting  the  defense  of  contributory  negligence — 
Burden. — This  Federal  statute  has  not  changed  the  rule 
with  reference  to  the  presentation  of  contributory  negligence 
as  a  defense,  except  it  is  now  only  a  partial  defense.  In 
the  federal  courts  the  ])urden  of  presenting  contributory 
negligence  of  the  plaintiff  as  a  defense  has  always  been  upon 

•  Raines  v.  Southern  Ry.  Co.  (N.  C.)  85  S.  E.  294;  Pfeiffer  v.  Oregon-W. 
11    &  N.   Co.   (Ore.)    144  Pac.  762. 


CONTKlBUTOKi:    AND    COMPARATIVE    NKGLIGEXCE.       ^g^ 

the  defendant,^^  and  this  burden  still  continues  in  a  suit 
brought  under  this  statute.  But  where  the  action  is  brought 
in  the  state  court  then  the  practice  peculiar  to  that  state 
need  not  necessarily  prevail,  unless  the  burden  to  show  con- 
tributory negligence,  before  the  enactment  of  this  statute,  has 
prevailed ;  for,  while  the  plaintiff  must  prove  the  extent  of 
his  injuries  and  practically  the  amount  of  his  damages,  or 
furnish  a  basis  from  which  the  jury  (or  court  if  trying  the 
case  without  a  jury)  can  estimate  or  compute  such  amount, 
it  does  not  follow  that  he  must  first  prove  that  amount  and 
then  show  to  what  extent  they  have  been  lessened  by  his  own 
contributory  negligence.  Therefore,  when  he  has  proven  his 
injury  and  its  extent  and  other  attendant  facts,  thus  show- 
ing a  basis  from  which  the  jury  can  estimate  his  damages, 
if  the  defendant  desires  to  reduce  them  by  showing  plain- 
tiff's contributory  negligence  he  has  the  burden  to  do  so. 
It  necessarily  results  that  if  the  action  is  brought  in  a  state 
court,  the  burden  is  upon  the  defendant  to  show  plaintiff's 
contributory  negligence,  if  he  desires  to  reduce  what  the 
amount  of  the  damages  would  otherwise  be;  and  that  the 
rule  of  a  state  practice  casting  a  burden  upon  the  plaintiff 
to  show  his  freedom  from  fault  before  he  can  recover,  has 

**  Railroad  Co.  v.  Gladmon,  15  damages,  for  instance,  injured 
Wall.  401;  21  L.  Ed.  114;  In-  several  other  persons  who  recover 
dianapolis,  etc.,  R.  Co.  v.  Horst,  damages  from  the  employer.  Can 
93  U.  tt.  291;  23  L.  Ed.  898;  the  latter,  when  sued  by  his  em- 
Hough  V.  Railway  Co.  100  U.  S.  ployee,  by  counter  claim  (in  those 
213;  25  L.  Ed.  612,  reversing  Fed.  states  allowing  a  counter  claim 
Cas.  No.  6,221;  Crew  v.  St.  Louis,  in  actions  to  recover  damages  oc- 
etc,  R.  Co.  20  Fed.  Rep.  87;  Hull  casioned  by  negligence)  reduce  the 
V.  Richmond,  2  Woodb.  &  M.  337;  damages  or  defeat  his  action  by 
Dunmead  v.  American,  etc.,  Co.  4  setting  up  the  damages  his  con- 
McCrary,  244;  Dillon  v.  Union  tributory  negligence  has  occa- 
Pacific  R.  Co.  3  Dill.  325;  Morgan  sioned?  It  is  thought  not;  be- 
V.  Bridge  Co.  5  Dill.  96;  Secord  v.  cause  the  statute  does  not  give 
St.  Paul,  etc.,  R.  Co.  5  McCrary,  the  employer  a  cause  of  action 
515;  Wabash,  etc.,  R.  Co.  v.  Cen-  where  his  act  contributed  to  the 
tury  Trust  Co.  32  Alb.  L.  Jr.  96;  injury,  which  would  be  the  case 
Southern  Ry.  Co.  v.  Peters  (Ala.)  if  the  coimter  claim  be  sustained. 
69  So.  611.  'Carpenter  v.  Kansas  City  S.  Ry. 

Suppose   the    contributory    act   of  Co.  (Mo.)  175  S.  W.  234. 
the   employee   caused   the  employer 


1S2  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 

necessarily  been  changed  and  does  not  apply  when  the  action 
is  based  upon  the  Federal  Employers'  Liability  Aet.^^ 

§  119.  When  contributory  negligence  does  not  di- 
minish daonages.  The  proviso  to  section  three  provides 
that  if  the  injury  or  death  of  the  employe  was  occasioned 
by  the  violation  by  the  common  carrier  of  any  statute  en- 
acted for  the  safety  of  employes,  or  rather  if  the  violation 
contributed  to  it,  the  employe  shall  not  "be  held  to  have 
been  guilty  of  contributory  negligence"  in  such  case.  When 
such  a  case  is  presented  the  factor  of  the  employer's  con- 
tributory negligence  is  not  to  be  considered  in  order  to 
reduce  his  damages.  The  statute  absolutely  prohibits  it. 
But,  of  course,  the  violation  of  the  statute  must  have  been 
the  proximate  cause  of  the  injury,  else  the  employee  would 
not  be  guilty  of  negligence  at  all ;  and  if  the  employe 's  act 
was  the  proximate  cause  of  the  injury,  irrespective  of  the 
violation  of  the  statute,  then  he  cannot  recover;  because 
the  employer  has  been  guilty  of  no  actionable  negligence. 
So,  in  instances  of  a  violation  of  a  (Federal)  statute,  re- 
sulting in  an  injury  to  the  employe,  where  section  four  pro- 
vides it  shall  not  be  considered  that  the  employe  assumed 
the  risk,  the  damages  cannot  be  diminished  by  reason  of 
his  negligence  contributing  to  the  result.  But  in  all  such  in- 
stances the  violation  of  the  statute  must  have  caused  or  pro- 
duced the  injury — must  have  been  the  proximate  cause  of  it. 

§  120.  Examples  under  Wisconsin  statute. — Under  the 
Wisconsin  statute  if  the  negligence  of  the  plaintiff  is 
"slighter"  than  that  of  the  defendant  railroad  company  he 
may  recover;  if  their  joint  negligence  be  even  he  may  not. 

89  In  Wisconsin  tlie  rule  was  slig'hter  than  that  of  the  defend- 
that  the  (lofendant  had  tlie  Iturdcn  ant,  did  not  chanj^e  the  rule  con- 
to  show  that  tiie  jjlaintill"  iiad  l>cen  corning  kind  of  contributory  negU- 
rpiilty  of  o<mtril)utory  negligence,  genca  that  had  tlieretofore  existed, 
in  order  to  defeat  the  action;  and  Zeratsky  v.  Chicago.  IM.  &  St.  P. 
it  was  lield  that  the  statute  of  Ky.  Co.' 141  Wis.  423;  123  N.  W. 
1007,  allowing  a  recovery  where  904. 
the       i>laiiiUir'3      negligence      was 


CONTHIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ]^g3 

In  a  ease  arising  under  this  statute  the  facts  were  substan- 
tially as  follows:  The  plaintiff  was  the  rear  brakeman  on 
the  defendant's  extra  freight  train,  consisting  of  fifty-four 
cars,  caboose  and  an  engine,  which  left  Green  Bay  of  that 
state  at  10:10  p.  m.  bound  for  Milwaukee.  It  had  a  full 
crew  of  trainmen,  consisting  of  the  engineer,  fireman,  con- 
ductor and  two  brakemen.  The  train  proceeded  south 
through  De  Pere  at  11 :05  p.  m.,  and  through  Ackerton,  and, 
when  about  one  and  one-fourth  miles  from  Hilbert  Junction, 
the  engine  ran  out  of  water,  and  was  unable  to  pull  the 
train  to  Hilbert  Junction.  '  *  The  plaintiff  was  in  the  caboose 
when  the  train  stopped.  The  engineer,  fireman,  conductor, 
and  the  other  brakeman,  without  informing  plaintiff  of 
their  intention,  cut  the  engine  from  the  train,  and  pro- 
ceeded with  it  to  Hilbert  Junction  to  get  a  supply  of  water 
without  giving  a  signal  to  the  plaintiff,  as  required  by  the 
following  rule  of  the  company:    'Rule  26.     The  one  long, 

two  short,  and  one  long  blast  of  the  whistle  thus,  , 

— ,  — , ,  will  be  given  by  engineers  when  they  find  it 


necessary  to  stop  between  stations  and  to  notify  con- 
ductor, thus  enabling  him  to  drop  off  and  send  back  a 
flagman.'  As  soon  as  plaintiff  observed  that  the  train  had 
stopped,  he  left  the  caboose,  and  went  forward  to  about  the 
middle  of  the  train  to  ascertain  the  cause  of  the  stopping. 
He  there  observed  that  the  engine  had  been  cut  off,  and 
had  left  with  the  rest  of  the  crew,  and  he  then  started  back. 
The  plaintiff  stated  that,  while  going  forward  and  coming 
back,  he  observed  the  odor  of  a  hot  box,  and  he  tapped 
the  boxes  to  find  the  one,  and  immediately  upon  his  return 
he  went  into  the  caboose  to  get  his  dope  bucket  to  fix  it. 
He  testified  that  he  took  no  more  time  than  was  necessary 
to  make  this  trip.  'Special  rules  for  train  and  engine 
men'  of  the  defendant  contains  the  following:  'Rule  B4. 
Conductors  and  brakeman  must  examine  their  trains,  when- 
ever there  is  an  opportunity  to  do  so,  looking  particularly 
for  hot  boxes  and  defective  draft  and  brake  rigging.' 
Meanwhile  the  defendant's  regular  passenger  train  bound 


184  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

for  Milwaukee  on  the  same  line  as  that  on  which  the  freight 
was  proceeding  had  arrived  at  Green  Bay  at  about  12:30 
a.  m.,  and  had  left  a  few  minutes  later.  At  De  Pere  it  was 
permitted  to  enter  the  block  which  was  occupied  by  the 
freight  train.  One  of  the  rules  of  the  defendant  was  as 
follows:  'Rule  3.  Trains  must  not  pass  a  block  signal  at 
danger  except  under  authority  of  a  clearance  card  form 
168.'  The  conductor  and  engineer  were  given  permissive 
and  clearance  cards  under  the  following  rules,  which  train- 
men are  supposed  to  know  and  obey : 

'Rule  4.  When  the  block  signal  stands  at  danger,  the 
operator  issues  a  clearance  card  which  states  that  he  has 
no  orders  or  no  further  orders  for  the  train  named.  The 
train  receiving  clearance  card  may  proceed  if  its  time  table 
rates  or  special  orders  permit  it  to  do  so.' 

'Rule  5.  The  permissive  card  is  used  when  trains  are 
permitted  to  pass  a  block  signal  at  danger  and  enter  the 
section  under  notice  that  the  preceding  train  has  cleared 
the  same  section.  This  is  to  be  used  only  by  direction  of 
the  train  dispatcher.' 

'Rule  6.  When  a  train  is  to  proceed  under  a  permissive 
card,  the  conductor  and  engineer  must  each  have  a  card 
of  the  following  form  properly  filled  out  and  signed  by 
the  train  dispatcher.' 

*  Rule  10.  Trains  running  under  the  authority  of  a  per- 
missive card  or  caution  signal  must  run  with  great  care 
and  at  reduced  speed  to  ensure  against  collisions  with  trains 
ahead.' 

A  special  caution  order  was  issued  to  the  conductor  and 
engineer  in  these  words:  'Extra  east,  Dietzler  conductor, 
left  De  Pere  at  11 :42  p.  m.  and  has  not  yet  arrived  at  Hil- 
bert  Junction.  Proceed  cautiously,  expecting  to  find  them 
on  main  line  at  any  point  without  flag  protection.'  The 
passenger  proceeded  south — or  east  as  it  is  called  in  railroad 
parlance — and,  when  running  at  a  speed  of  about  thirty 
miles  per  hour,  collided  with  the  rear  end  of  the  freight 
train  which  had  stopped  on  the  main  track  a  mile  and  one- 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.       ^85 

quarter  from  Ililbert  Junction.  The  freight  train  crew  had 
not  been  specifically  informed  that  the  passenger  train  had 
been  permitted  to  enter  the  same  block  or  section  of  track 
as  was  occupied  by  the  freight  train.  The  plaintiff,  who  was 
in  the  caboose  of  the  freight  train,  was  seriously  injured 
by  the  collision.  The  fireman  of  the  passenger  train  was 
killed,  and  the  engineer  was  injured.  There  was  a  straight 
and  unobstructed  stretch  of  track  back  of  the  caboose  of 
three  thousand  feet.  Whether  or  not  the  red  lights  were 
burning  on  the  caboose  was  a  disputed  question  on  the 
trial. 

The  following  rules  of  the  defendant  regarding  the  opera- 
tion of  trains  were  in  force  at  the  time  of  the  collision : 

'Rule  62.  When  a  train  stops  between  stations,  a  flag- 
man must  immediately  go  back  with  proper  signals  to  stop 
any  trains  that  may  be  following.  Not  a  moment  must  be 
lost  in  inquiry  as  to  the  cause  of  stoppage  or  its  probable 
duration.  The  flagman  must  go  back  instantly  and  shall 
take  not  less  than  three  torpedoes,  also  a  red  flag  by  day 
and  a  red  and  white  light  by  night,  and  shall  place  one 
torpedo  on  the  rail  on  the  engineer's  side  when  three-fourths 
of  a  mile  (23  telegraph  poles)  distant  from  the  rear  of 
train,  and  at  a  further  distance  of  one-fourth  mile  (eight 
telegraph  poles),  he  shall  place  two  torpedoes  on  the  rail 
on  the  engineer's  side.  He  will  then,  selecting  a  place  where 
the  view  is  long  and  clear,  remain  until  the  train  is  stopped 
or  he  is  recalled.  Returning  he  will  leave  two  torpedoes 
at  the  most  distant  point  from  his  train  and  take  up  the 
rest.  Whenever  it  becomes  necessary,  the  forward  end  of 
the  train  shall  be  protected  in  the  same  manner.' 

'Rule  50.  ■  Train  and  engine  men  will  be  held  equally 
responsible  for  violation  of  any  of  the  rules  governing  the 
safety  of  trains,  and  they  must  take  every  precaution  for 
the  protection  of  trains,  even  if  not  provided  for  by  the 
rule. ' 

'Rule  26.  Conductors  will  be  held  responsible  for  the 
faithful  performance  of  the  duty  required  on  the  part  of 
their  brakemen.' 


186  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

'Rule  A58.  Trains  moving  under  permissive  card  will 
be  held  responsible  for  an  accident  in  the  nature  of  colliding 
with  the  train  occupying  the  section  which  required  move- 
ment under  the  permissive  card.  Engineers  will  not  be 
censured  for  moving  at  a  speed  to  insure  against  accident.' 

The  defendant  alleges  that  the  collision  was  caused  by 
the  failure  of  the  passenger  engineer  to  observe  its  train 
orders  and  the  rules  and  regulations  known  to  him,  to- 
gether with  the  contributory  negligence  of  the  plaintiff  and 
his  violation  of  the  defendant's  rules  and  regulations." 

At  the  close  of  the  testimony,  the  court,  on  defendant's 
motion,  directed  a  verdict  for  the  defendant,  and  judgment 
was  rendered  upon  the  verdict  so  rendered.  This  was  held 
error,  on  the  ground  that  the  facts  presented  a  case  for  the 
jury  to  determine  whether  the  negligence  of  the  plaintiff 
was  not  "slighter"  than  that  of  the  defendant.  The  statute 
required  the  jury  to  find  if  the  negligence  of  the  defendant 
"directly  contributed  to  the  injury;"  and  the  court  con- 
strued this  to  merely  mean  negligence  proximately  con- 
tributing to  the  injury,  and  that  the  use  of  the  word 
"directly"  did  not  operate  to  modify  the  law  of  proximate 
cause  in  the  law  of  negligence.  "It  is  alleged,"  said  the 
court  in  passing  on  the  evidence,  "that  the  plaintiff  was 
guilty  of  negligence  in  omitting  to  perform  his  duty  as 
brakeman  on  the  occasion  in  question,  in  that  he  failed  to 
protect  the  rear  of  the  freight  train  from  the  passenger 
train,  and  that  this  failure  of  duty  by  him  was  a  proximate 
cause  of  the  collision  and  his  injuries.  The  contention  is 
that,  but  for  plaintiff's  contributory  negligence,  the  injury 
would  not  have  been  received;  and  hence  that  the  negli- 
gence of  the  plaintiff  in  its  most  favorable  aspect  under  the 
law  is  equal  to  the  negligence  attributable  to  the  defendant 
as  a  contributing  cause  to  the  injury.  In  the  solution  of 
this  question  all  of  the  inferences  from  the  evidential  facts 
most  favorable  in  support  of  the  plaintiff's  alleged  cause  of 
action  must  be  assumed  to  be  the  view  of  the  case  which 
may  be  taken  by  the  jury.    The  contention  that  plaintiff's 


COxMTKilJUTOKY    AND    COMPAKATIVK    XEGLIGEXCIC       IQ-j 

duty  did  not  require  him  to  flag  tlie  train  under  rule  62, 
unless  directed  so  to  do  by  the  train  conductor  or  by  a 
signal  from  the  engineer  by  a  blast  from  the  whistle,  cannot 
be  sustained.  The  rule  is  clear  in  its  provision  that,  when 
a  train  stops  between  stations,  a  flagman  must  go  back  to 
stop  any  train  that  may  be  following,  give  the  prescribed 
signals  to  it,  and  remain  at  the  place  to  which  he  has  gone 
until  the  train  stops  or  he  is  recalled.  This  duty  is  further 
enjoined  by  rule  50,  which  informs  persons  engaged  in  the 
train  service  that:  'Train  and  engine  men  will  be  held 
equally  responsible  for  a  violation  of  any  of  the  rules  gov- 
erning the  safety  of  trains,  and  they  must  take  every  pre- 
caution for  the  protection  of  trains  even  if  not  provided  for 
by  the  rules.'  We  find  no  support  for  plaintiff's  claim 
that  the  duty  imposed  by  these  regulations  was  disregarded 
in  practice  to  such  an  extent  as  to  abrogate  them.  Nor  is 
it  shown  that  the  plaintiff  was  informed  while  in  de- 
fendant's service  that  these  rules  and  the  duties  imposed 
thereby  were  not  obligatory  on  him.  We  think  that  the 
plaintiff  as  rear  brakeman  of  this  train  was  required  to 
perform  whatever  duty  these  rules  imposed  on  him. 

**The  evidence  tends  to  show  that  the  plaintiff  was  the 
rear  brakeman  on  a  freight  train  which  came  to  a  stop  on 
the  main  track  between  stations.  He  had  not  been  informed 
by  the  engineer's  signal  that  the  train  was  to  make  a  stop. 
So  far  as  he  then  knew,  the  train  might  be  stopped  only 
momentarily.  In  the  operation  of  trains,  stops  of  a  mo- 
mentary character  must  inevitably  occur,  and  on  such 
occasions  it  would  be  both  unnecessary  and  impracticable 
for  the  rear  brakeman  to  leave  the  train  at  once  to  signal 
a  train  that  might  be  following.  It  is  obvious  that,  if  the 
brakeman  should  immediately  so  leave  his  train  on  all  such 
occasions,  he  would  on  many  occasions  be  wholly  separated 
from  his  train.  He  testifies  that  he  went  forward  to  a 
point  where  he  observed  that  the  engine  had  been  detached 
from  the  train  and  had  departed  for  Hilbert  Junction ;  that 
then  he  crossed  over  to  the  other  side  of  the  train;  that  he 


188 


FEDERAL    EMPLOYERS      LIABILITY    ACT. 


observed  the  odor  of  a  hot  box,  and  that  he  attempted  to 
locate  it  while  he  was  returning  to  the  caboose ;  that  he  took 
no  more  time  than  it  naturally  takes  to  make  such  a  trip ; 
that  he  returned  to  the  caboose  without  intending  to  go  and 
signal  the  coming  passenger  train;  that  he  at  once  looked 
for  the  dope  bucket  in  the  caboose  to  fix  the  hot  box;  and 
that  the  collision  occurred  immediately.  It  is  argued  that 
this  amounts  to  a  violation  of  his  duty  under  the  rules  and 
establishes  his  contributory  negligence.  Upon  learning  that 
the  engine  had  departed  for  Plilbert  Junction,  it  became 
the  duty  of  the  plaintiff  to  procure  the  means  and  to  go 
back  to  signal  a  coming  train,  and  in  omitting  so  to  do  he 
was  guilty  of  not  exercising  that  care  which  the  situation 
and  the  exigencies  of  the  case  demanded,  but  it  is  not  so 
clear  that  it  can  be  held  as  matter  of  law  in  what  degree 
it  contributed  to  produce  the  injury.  The  contention  that 
it  amounted  to  the  very  highest  degree  of  negligence  be- 
cause the  accident  would  not  have  happened  but  for  the 
violation  of  defendant's  rules  seems  necessarily  to  assume 
that  the  plaintiff  in  making  this  trip  to  ascertain  whether 
the  train  was  to  stop  more  than  momentarily,  and  in  not 
instantly,  upon  the  stopping  of  the  freight  train,  taking  steps 
to  signal  the  coming  passenger  train,  was  guilty  of  such  a 
high  degree  of  negligence  as  to  preclude  his  recovery.  He 
testifies  that  he  consumed  from  fifteen  to  twenty-five  min- 
utes on  his  trip ;  that  he  relied  on  the  red  light  signals  dis- 
played on  the  rear  of  the  caboose  to  signal  the  coming 
passenger  train;  that  he  went  to  the  caboose  for  the  dope 
bucket  to  fix  the  hot  box,  and  while  in  this  act  the  collision 
occurred.  It  is  not  clear  from  the  record  that,  if  on  his 
return  to  the  caboose  he  had  immediately  proceeded  to 
procure  his  lantern  and  torpedoes  to  signal  the  coming 
train,  he  would  have  prevented  the  collision.  The  degree 
of  negligence  involved  in  these  acts  is  not  so  clear  that  it 
can  be  determined  as  a  matter  of  law.  Under  the  circum- 
stances, it  is  a  mixed  question  of  law  and  fact  which  must 
be  resolved  by  the  jury. 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.      ^89 

"The  case  also  demands  of  the  jury  that  they  determine 
in  what  degree  the  negligence  attributable  to  the  company 
contributed  to  produce  the  injury.  Among  the  matters 
bearing  on  this  question  it  is  alleged  that  the  train  dis- 
patcher was  derelict  in  his  duty  in  permitting  the  pas- 
senger train  to  enter  the  block  as  he  did ;  that  the  engineer 
of  the  passenger  train  omitted  to  obey  special  and  express 
orders  in  running  his  train  on  the  block ;  and  that  the  con- 
ductor and  the  engineer  of  the  freight  train  were  negligent 
in  not  signaling  or  warning  this  brakeman  of  the  stop,  and 
in  failing  to  ascertain  before  stopping  that  the  plaintiff  as 
rear  brakeman  was  on  duty  or  capable  of  protecting  the  rear 
of  the  train.  In  passing  on  the  question  of  whether  or  not 
the  company's  negligence  caused  plaintiff's  injuries  in 
greater  degree  than  that  of  the  plaintiff,  all  of  these  facts 
relating  to  the  omission  of  duty  on  the  part  of  these  servants 
who  occupied  positions  of  great  responsibility  in  the  conduct 
of  the  defendant's  business  must  be  viewed  in  comparison 
with  the  acts  of  the  plaintiff  in  the  light  of  their  respective 
duties  and  their  responsibility  to  exercise  a  degree  of  care 
commensurate  to  the  exigencies  of  the  situation.  The  case 
is  not  so  plain  and  clear  that  but  one  inference  can  reason- 
ably be  drawn  from  the  evidence  as  to  the  questions,  and 
they  therefore  should  have  been  submitted  to  the  jury  for 
determination."^'^"  Another  case  may  be  taken  from  the 
Wisconsin  Supreme  Court  decision  that  will  serve  to  illus- 
trate the  application  of  the  statute  of  that  state  and  inci- 
dentally throw  light  upon  the  construction  of  the  Federal 
statute.  The  following  is  the  statement  of  the  case  as  made 
by  the  court  with  so  much  of  the  opinion  of  the  court  as 
passes  upon  the  question  of  the  contributory  negligence  of 
the  plaintiff: 

"At  North  Fond  du  Lac  the  defendant  had  an  arrange- 
ment for  handling  cinders.    The  arrangement  is  the  only  one 

looZeratskv  v.  Chicago,  IVL  &  St.  P.  Ry.  Co.  141  Wis.  423;  123 
N.  W.  904. 


190  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

of  its  kind  operated  by  the  defendant.  Under  one  of  the 
defendant's  tracks  is  what  is  known  as  the  'cinder  pit.' 
On  the  bottom  of  the  cinder  pit,  which  lies  nine  or  ten  feet 
below  the  track,  are  two  sets  of  parallel  tracks  running 
east  and  west.  At  the  north  and  south  of  the  tracks  in  the 
pit  are  abutments.  The  east  end  of  the  pit  is  closed.  The 
pit  is  reached  by  a  curved  inclined  track  about  300  feet 
long.  There  is  room  in  the  cinder  pit  for  two  gondola  cars. 
"When  the  two  cars  are  in  the  pit,  they  came  very  close  to- 
gether, and  are  very  close  to  the  abutments.  In  using  the 
pit  the  cars  are  at  first  run  partly  in,  being  blocked  so  that 
the  half  farthest  in  is  under  the  track  above.  Locomotives 
on  the  track  above  are  stopped  over  the  cars  in  the  pit,  and 
the  ashes  and  cinders  which  are  dumped  therefrom  fall 
between  the  rails  into  the  cars  below.  When  the  cars  are 
half  filled,  the  block  is  removed  from  the  wheels,  and  the 
cars  are  allowed  to  slide  down  the  incline  so  as  to  permit 
the  filling  of  the  other  half.  Owing  to  the  curve  and  the 
incline  of  the  track  leading  into  the  pit,  a  chain  coupling 
is  used  between  the  cars  and  the  engine  when  cars  are 
placed  in  the  pit. 

"The  plaintiff's  intestate  had  been  employed  by  the  de- 
fendant for  about  nine  months  as  a  brakeman.  On  August 
4,  1908,  the  deceased  was  assigned  to  assist,  under  the 
switch  foreman,  at  the  task  of  removing  the  filled  cars  and 
of  placing  empty  ones  therein.  The  two  loaded  cars  were 
removed  by  the  foreman  of  the  regular  switch  crew  with 
the  aid  of  an  engine  crew,  who  had  not  performed  this  work 
before,  and  an  empty  car  had  been  placed  on  the  north 
track.  The  deceased  had  meanwhile  tended  a  switch. 
When  the  second  car  was  being  placed,  the  deceased  as- 
sisted and  did  the  uncoupling  of  the  engine  from  the  car. 
The  engine  had  run  the  empty  car  too  far  into  the  pit,  and 
it  was  necessary  to  back  out.  When  the  car  was  in  proper 
position,  it  was  blocked  there  by  Loucks,  the  foreman  of 
the  regular  switch  crew,  who  then  stepped  back  to  the  north 
of  the  car,  so  that  he  was  about  10  feet  from  the  deceased. 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE. 


191 


The  engine  was  still  attached  to  the  empty  ear  by  the  chain 
coupling,  and  it  was  necessary  for  the  engine  to  move  a 
little  toward  the  car,  so  that  the  pin  holding  the  chain  could 
be  pulled  out  and  the  engine  uncoupled  from  the  car.  The 
space  between  the  drawbars  of  the  car  and  the  engine  was 
about  two  feet.  The  deceased  stepped  from  the  north  be- 
tween the  engine  and  the  car  to  draw  the  pin,  and  was  then 
on  that  side  of  the  drawbars.  He  gave  by  word  and  sign 
the  signal  for  'slack  the  pin.'  The  foreman  communicated 
the  signal  to  the  fireman,  by  whom  it  was,  in  turn,  com- 
municated to  the  engineer.  Thereupon  the  engineer  re- 
leased the  brake  on  the  engine  and  it  slowly  started  toward 
the  car.  Loucks,  the  foreman  of  the  switch  crew,  was  the 
only  person  who  was  observing  the  deceased.  He  testified 
that  the  deceased,  whose  back  was  toward  him,  pulled  the 
pin;  that  the  chain  dropped  from  the  car;  that  just  after 
the  deceased  pulled  the  pin  he  moved  forward  between  the 
drawbars  of  the  car  and  the  engine ;  and  that,  as  he  stepped 
forward,  he  turned  his  face  toward  the  engine,  and  was 
immediately  caught  between  the  drawbars.  The  engine 
moved  forward,  and  the  deceased  was  caught  and  injured 
and  crushed  between  the  drawbars  of  the  car  and  of  the 
engine.  He  died  almost  instantly.  Besides  the  injury  to 
the  part  of  the  body  caught  between  the  drawbars,  the 
thumb  of  the  right  hand  of  the  deceased  was  injured.  The 
jury  found  that  the  negligence  of  the  engineer  in  slacking 
the  pin  was  the  proximate  cause  of  the  death  of  the  de- 
ceased, and  that  it  was  greater  as  a  contributing  cause  to 
his  death  than  the  negligence  of  Boucher  himself.  They 
also  assessed  the  damages." 

"The  appellant,*'  said  the  court,  "assails  the  court's  de- 
cision holding  that  the  evidence  in  the  case  required  sub- 
mission of  the  issues  whether  the  engineer  was  negligent  in 
conducting  the  defendant's  business  at  the  time  Boucher 
was  injured ;  if  so  negligent,  whether  it  was  the  proximate 
cause  of  the  injury,  and  whether  such  negligence  was  a 
greater  or  less  contributing  cause  in  producing  Boucher's 


192  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

death  than  his  contributory  negligence.  The  facts  of  the 
ease  controlling  these  questions  are  within  a  narrow  com- 
pass, and  are  so  interrelated  that  a  reference  to  them  will 
suffice  for  the  consideration  of  all  the  questions  presented 
by  these  contentions.  The  foregoing  statement  of  them 
makes  clear  what  were  the  duties  assigned  Boucher  and 
the  engineer  in  conducting  the  defendant's  business  at  the 
time  of  the  accident.  It  is  argued  that  the  facts  wholly 
fail  to  show  that  the  engineer  was  negligent  in  managing 
the  engine  for  the  purpose  of  slacking  the  coupling  chain 
when  signaled  so  to  do  by  Boucher,  and  that  the  accident 
was  wholly  due  to  the  fact  that  the  decedent  deliberately 
and  negligently  stepped  into  a  place  of  obvious  and  immi- 
nent danger.  It  is  undisputed  that  the  car  had  been  shoved 
into  the  cinder  pit;  that  it  had  been  blocked;  that  the 
engine  had  come  to  a  stop ;  that  the  chain  forming  the 
coupling  between  the  car  and  the  engine  was  taut  so  that 
the  coupling  pin  could  not  be  released  without  slacking ; 
that  the  decedent  was  required  in  the  performance  of  his 
duty  to  step  between  the  car  and  the  engine  to  do  the 
uncoupling;  that  it  devolved  on  him  to  give  the  signal  for 
slacking  the  coupling  chain  to  enable  him  to  pull  the 
coupling  pin ;  and  that  it  was  the  duty  of  the  engineer  to 
move  the  engine  for  this  purpose  when  the  signal  therefor 
was  communicated  to  him.  There  is  no  dispute  but  that 
the  signal  to  this  effect  was  communicated  to  the  engineer 
for  this  purpose.  The  switch  foreman  testifies  that  the 
decedent  gave  the  signal  for  the  'slack  of  the  pin,'  and  that 
he  communicated  it  to  the  fireman.  The  fireman  testifies 
that  he  communicated  it  to  the  engineer,  and  that  he  there- 
upon moved  the  engine  forward.  The  engineer  testifies  that 
he  received  the  signal  'to  slack  ahead,'  which  implied  that 
he  was  to  proceed  until  signaled  to  stop.  He  states  that 
his  recollection  of  the  signal  is  uncertain.  He  also  testifies 
that  he  was  fully  informed  that  the  car  had  been  blocked, 
that  the  engine  was  required  to  move  forward  only  a  few 
inches  to  slack  the  chain  in  order  to  loosen  the  coupling 


CONTRIBUTORY    AND    COMPARATIVE    NEGLIGENCE.      ^Q^ 

pin ;  that  a  movement  of  a  few  inches  would  suffice  and  was 
the  only  movement  toward  the  car  required  of  the  engine; 
that  the  last  act  before  moving  the  engine  away  from  the 
ear  was  the  uncoupling;  and  that  he  fully  understood  all 
the  facts  and  conditions  of  the  service  in  which  they  were 
then  engaged.  The  court  submitted  to  the  jury  the  ques- 
tion of  whether  the  engineer  under  the  circumstances  was 
negligence  in  the  management  of  the  engine  which  resulted 
in  a  forward  movement  of  several  feet  and  in  contact  with 
the  car. 

"The  point  is  made  that  the  engineer  had  a  right  to 
move  the  engine  as  he  did  in  response  to  the  signal  given 
him.  There  is  dispute,  however,  as  to  what  signal  he  re- 
ceived. The  jury  evidently  found  that  he  received  the  sig- 
nal to  slack  the  pin,  and  that  this  called  on  him  to  move 
the  engine  only  a  few  inches.  There  is  evidence  of  other 
employees  of  the  defendant  in  support  of  this  view.  Further- 
more, the  engineer  was  fully  informed  of  the  whole  situa- 
tion and  the  conditions  under  which  he  was  acting  and 
knew  that  he  was  required  to  move  the  engine  no  more  than 
was  necessary  to  slack  the  pin.  In  fact,  he  moved  the 
engine  several  feet,  and  thereby  brought  about  the  contact 
between  the  engine  and  the  car  whereby  Boucher  was  in- 
jured. It  is  evident  that  the  movement  of  three  or  four 
inches  of  the  engine  could  have  been  made  readily. 

''However,  it  is  claimed  that  the  engineer  had  no  reason 
to  anticipate  that  an  injury  would  result  from  the  movement 
made  by  the  engine.  The  situation  apprised  him  that 
Boucher  was  then  between  the  car  and  the  engine  for  the 
purpose  of  pulling  the  coupling  pin,  and  that  such  a  move- 
ment as  was  made  must  result  in  a  collision  with  the  blocked 
car  in  the  cinder  pit.  Surely  such  a  movement  of  the  engine 
was  fraught  with  danger  to  the  decedent,  who  was  in  a 
proper  position  to  perform  his  service,  and  the  engineer  had 
a  reasonable  basis  for  anticipating  that  an  injury  might 
result  from  such  management  of  the  engine.  We  are  led 
to  the  conclusion  that  the  facts  and  circumstances  of  the 


194  FEDERAL   EMPLOYERS'    LIABILITY    ACT, 

case  required  that  the  question  of  the  engineer's  negligence 
in  the  management  of  the  engine  should  be  submitted  to  the 
jury  as  was  done  in  the  first  question  of  the  special  ver- 
dict. The  court  informed  the  jury  that  this  question  in- 
cluded the  inquiry  as  to  whether  the  engineer  was  negligent 
in  moving  the  engine  forward  to  remove  the  strain  from  the 
coupling  chain,  and  thus  to  free  the  coupling  pin  so  that 
it  could  be  pulled.  The  instructions  in  this  respect  fully 
informed  the  jury  of  the  scope  of  this  issue,  and  of  what  it 
embraced.  The  court  in  calling  the  jurors'  attention  to  the 
evidence  on  this  subject  did  not  restrict  the  jury  to  the 
portion  he  alluded  to,  but  instructed  them  to  take  into  con- 
sideration all  the  evidence  bearing  on  the  inquiry  so  sub- 
mitted to  them.  The  instructions  so  given  were  free  from 
undue  restrictions  on  the  jury  in  their  deliberations,  and  in 
no  way  misled  them. 

*'It  is  contended  that  the  court  erred  in  refusing  to  in- 
struct the  jury  to  the  effect  that,  if  the  engineer  was  found 
guilty  of  negligence,  it  was  not  the  proximate  cause  of 
Boucher's  death,  and  that  his  death  was  proximately  caused 
by  his  contributory  negligence.  The  court  found  as  matter 
of  law  that  the  decedent  was  guilty  of  contributory  neg- 
ligence. The  argument  is  made  that  the  engineer  had  a 
right  to  rely  on  the  fact  that  Boucher  under  no  circum- 
stances would  occupy  a  place  wherein  he  might  be  caught 
between  the  drawbars  of  the  car  and  the  moving  engine 
and  thus  meet  certain  death,  unless  he  deliberately  placed 
himself  in  this  obviously  and  imminently  dangerous  posi- 
tion. Is  this  a  legitimate  deduction  from  the  facts  and  cir- 
cumstances of  the  case?  We  do  not  so  regard  it.  Boucher's 
conduct  must  be  considered  in  the  light  of  the  situation  as 
disclosed  by  the  facts  and  circumstances  under  which  he 
performed  his  duties.  It  is  clear  that  he  took  a  position 
between  the  car  and  the  engine  where  he  could  readily 
grasp  and  pull  the  coupling  pin  from  the  coupling  device 
of  the  car,  and  that  he  pulled  the  pin  and  thereby  caused 
the  chain  to  drop.    The  jury  from  the  evidence  must  have 


COXTRIBUTOUV    AXD    COMPARATIVE    NEGLIGENCE.      ^95 

found  that  in  giving  the  signal  to  'slack  the  pin'  he  called 
for  a  forward  movement  of  the  engine  of  but  a  few  inches. 
In  his  position  between  the  car  and  the  engine  his  back 
was  turned  toward  the  engine,  and  there  was  sufQcient  space 
for  him  to  pass  between  the  drawbars  of  the  car  and  the 
engine.  Having  given  the  signal  to  the  engineer  to  come 
forward  with  the  engine  sufficiently  to  slack  the  pin,  he,  in 
the  exercise  of  reasonable  care,  might  well  anticipate  that 
the  engine  would  move  no  farther  than  required  for  this 
purpose.  While  he  cannot  be  deemed  free  from  blame  in 
not  looking  to  see  if  the  engine  was  approaching,  it  does 
not  appear  but  that  he  may  have  taken  the  step  to  complete 
his  duties,  and  that  in  the  ordinary  course  of  discharging 
his  duties  he  got  into  this  space  through  very  slight  inad- 
vertence, or  that  the  physical  condition  of  the  track  may 
have  caused  him  to  take  this  step.  All  this  refutes  the  as- 
sumption that  he  deliberately  placed  himself  in  a  place 
imminently  dangerous  to  his  life.  From  the  situation  thus 
presented,  it  cannot  be  said  that  the  duty  to  protect  him- 
self against  the  hazards  incident  to  the  engineer's  conduct 
rested  solely  on  Boucher,  and  that  the  engineer  was  free 
from  legal  responsibility  as  to  the  result.  From  the  very 
nature  of  the  situation  and  corresponding  duties  of  the  two 
men  to  guard  Boucher  against  injury  it  may  be  said  that 
the  negligence  of  the  engineer  was  of  a  graver  and  weightier 
character  as  a  contributing  cause  to  Boucher's  death  than 
that  of  the  decedent.  After  careful  examination  of  the 
evidence  and  much  reflection,  we  have  become  persuaded 
that  the  facts  of  the  ease  are  not  so  clear  upon  the  issue  of 
the  engineer's  negligence  and  its  proximate  contribution 
toward  causing  Boucher's  death  and  upon  the  question  of 
whether  the  decedent's  contributory  negligence  was  slighter 
or  greater  than  that  attributable  to  the  defendant  as  to 
require  determination  of  them  by  the  court  as  matter  of 
law.    The  court  properly  submitted  them  to  the  jury. 

"It  is  strenuously  argued  that  the  jury  cannot  deter- 
mine from  the  evidence  whether  Boucher 's  death  was  caused 


196  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

in  greater  part  by  the  negligence  of  the  defendant  as  com- 
pared with  his  contributory  negligence,  and  hence  that  the 
plaintiff  has  failed  to  establish  her  cause  of  action.  In 
support  of  this  claim,  the  contention  is  made  that  the  burden 
is  on  the  plaintiff  to  establish  a  cause  of  action,  and  that 
the  evidence  fails  to  show  any  grounds  justifying  Boucher's 
stepping  between  the  drawbars,  and  he  must  therefore  be 
held  to  have  taken  this  step  knowing  it  meant  certain 
death.  The  facts  and  circumstances  of  this  situation  already 
adverted  to  we  think  negative  this  claim,  and  show  that  the 
jury  could  have  found  that  he  entered  this  space  through 
slight  inadvertence,  and  that  the  conduct  of  the  engineer 
in  comparison  therewith  may  be  considered  a  weightier  and 
graver  default.  "^°^ 

In  another  case  it  appeared  that  the  deceased  was  a  sec- 
tion foreman.  At  seven  o'clock  in  the  morning  he  started 
out  on  a  handcar.  It  was  a  very  dark  and  foggy  morning. 
When  the  car  had  run  about  four  thousand  feet,  it  was 
run  into  and  he  was  killed  by  a  locomotive  and  caboose. 
The  locomotive  and  caboose  was  running  as  an  irregular 
train,  ahead  of  a  passenger  train;  and  the  deceased  had 
notice  of  it  before  he  started.  This  train  was  running  at 
the  usual  speed  without  the  headlight  being  lighted,  it 
having  been  extinguished,  but  the  engineer  was  not  aware 
of  that  fact  and  it  was  not  possible  to  tell  from  his  position 
on  the  locomotive  at  the  time  whether  it  was  burning  or 
not.  The  engineer  failed  to  sound  his  whistle  at  the  first 
crossing  west  of  the  station  or  at  the  mile  post.  It  was 
held  that  the  engineer's  negligence  was  not  gross,  as  com- 
pared to  that  of  the  decedent,  so  as  to  entitle  the  plaintiff 
to  recover,  notwithstanding  the  decedent's  contributory 
negligence,  under  the  provisions  of  the  statute.  It  was  held 
that  there  was  no  evidence  from  which  a  court  or  jury  could 
say  that  the  negligence  of  the  decedent  was  slighter  than 
that  of  the  engineer."^ 

loi  Boucher  v.  Wisconsin  Central  ^'^-  Dolir    v.    Wisconsin    Central 

T?y.  Co.  141  Wis.  160;  123  N.  W.  Ry.  Co.  144  Wis.  545;  129  N.  W. 
913.  252.      A      different      result      was 


CONTRIBUTORY    AND    COMPARATIVK    NEGLIGENCE. 


197 


§  121.  Practice  under  Wisconsin  statute. — Under  the  Wis- 
consin statute  it  is  proper  to  cover  the  question  of  the 
negligence  of  the  defendant  and  the  contributory  negligence 
of  the  plaintiff  by  one  or  more  appropriate  questions  sub- 
mitted to  the  jury,  each  involving  a  singular  issuable  idea 
according  to  the  circumstances,  in  accordance  vv^ith  the  prac- 
tice under  the  special  verdict  law,  for  the  reason  that  the 
answer  of  "Yes"  or '"No"  would  often  not  inform  the 
court  with  reasonable  certainty  of  a  unanimous  agreement 
upon  either  of  the  several  ideas  distinctively  joined  by  the 
statute.  The  better  practice  is  to  use  the  words  "want  of 
ordinary  care"  rather  than  the  word  "negligence"  in  sub- 
mitting the  questions  to  the  jury;  and  the  words  "proxi- 
mately contributing"  should  be  used  instead  of  the  words 
* '  directly  contributing, ' '  since  that  is  the  construction  given 
by  the  Supreme  Court  to  the  last  two  words.  The  submis- 
sion of  the  questions  to  the  jury  whether  the  company  or 
any  officer  other  than  the  person  injured  was  guilty  of  a 
want  of  ordinary  care,  and  if  that  be  true,  whether  the 
person  injured  was  guilty  of  ordinary  care,  should  only  be 
made  in  so  far  as  they  are  warranted  by  the  evidence.  The 
set  phrase  whether  the  fault  of  the  injured  party  "was 
greater  or  slighter  as  a  contributing  cause"  should  not  be 
used,  but  only  whether  the  fault  of  the  defendant  was  the 
greater,  in  order  to  administer  the  statute  in  its  spirit.^*^^ 

reached   on   the   facts  in   Clary   v.  082;   Schendel  v.  Chicago  &  N.  W. 

Chicago.  M.  &  St.  P.  Rv.  Co.   141  Rv.   Co.    (Wis.)    133   N.   W.   830; 

Wis.  411;  123  N.  W.  649.  Ket«hum  v.  Chicago,  St.  P.,  M.  & 

103  Jensen  v.  Wisconsin  Central  O.  Rv.  Co.   (Wis.)    136  N.  W.  634. 
Ry.  Co.  145  Wis.  326;    128  N.  W. 


CHAPTER  VI. 

ASSUMPTION  OF  EISK. 


SECTION 

122.  Federal  statute — Assumption  of 

risk. 

123.  Exceptions — Statute. 

124.  Distinction  between  assumption 

of  risk  and  contributory  neg- 
ligence— Unknown  risk. 

125.  To    what    "statute"    reference 

is  made. 

126.  Assumption  of  risk  only  abolish- 

ed in  part. 


SECTION 

127.  The  Horton  Case  as  an  example 

of    assumption    of    risk — In- 
structions. 

128.  Violation    of    Federal    statute 

enacted  for  safety  of  employee. 

129.  Negligence     of     carrier    as    a 

fellow  servant. 

130.  Defective  cars,  engines,  tracks 

and  appliances. 

131.  Question  if  risk  was  assumed. 


§  122.  Federal  statute — Assumption  of  risk. — ' '  In  every 
action  brought  against  any  common  carrier  under  or  by 
virtue  of  any  of  the  provisions  of  this  act  to  recover  damages 
for  injuries  to,  or  the  death  of,  any  of  the  employees,  such 
employee  shall  not  be  held  to  have  assumed  the  risk  of  his 
employment  in  any  case  where  the  violation  by  such  com- 
mon carrier  of  any  statute  for  the  safety  of  employees  con- 
tributed to  the  injury  or  death  of  such  employee,"^ 

§123.  Exceptions — Statute. — "Nothing  of  this  act  shall 
be  held  to  limit  the  duty  or  liability  of  common  carriers  or 
to  impair  the  rights  of  their  employees  under  any  other 
act  or  acts  of  Congress,  or  to  affect  the  prosecution  of  any 
pending  proceeding  or  right  of  action  under  the  act  of 
Congress,  entitled  'An  act  relating  to  liability  of  common 


*  Section  4  of  statute.  "Clearly  had 
Section  1  [of  the  Act  of  1900]  in  terms 
provided  that  carrier  should  install 
and  maintain  proper  and  sufficient 
cars,  etc.,  and  that  the  failure  to  do 
so  would  render  it  liable  for  accidents 
resulting  from  such  failure  and  de- 
prive it  of  the  defense  of  contributory 
negligence,  the  carrier  v/ould  not 
be  permitted  to  defeat  the  law  by 
resorting  to  the  doctrine  of  a.ssumption 
of  risk."     Pfiiiadelphia,  B.  &  W.  11. 

198 


C.  v.  Tucker,  35  App.  D.  C.  123, 
citing  Kilpatrick  v.  Grand  Trunk  Ry. 
Co.  72  Vt.  288;  47  Atl.  827.  See 
Neil  V.  Idaho  &  W.  R.  Co.  22  Idaho 
74:  125  Pac.  331. 

For  an  article  on  the  "Joker"  in  the 
Federal  Liability  Statute,  discussing 
the  assumption  of  risk,  see  80  Central 
Law  Journal  5.  Evidently  Congress 
never  intended  to  abolish  the  assump- 
tion of  risk,  as  the  writer  of  this  ar- 
ticle thinks  it  did. 


ASSUMPTION    OF    RISK. 


199 


carriers  in  the  District  of  Columbia  and  territories,  and  to 
common  carriers  engaged  in  commerce  between  the  states 
and  between  the  states  and  foreign  nations  to  their  em- 
ployees,' approved  June  11,  1906."- 

§  124.  Distinction  between  assumption  of  risk  and  con- 
tributory negligence — Unknown  risk. — The  distinction  be- 
tween assumption  of  risk  and  contributory  negligence  is  a 
very  simple  one,  and  yet  it  is  "sometimes  overlooked,"  said 
Justice  Pitney.  "Contributory  negligence  involves  the 
creation  of  some  fault  or  breach  of  duty  on  the  part  of  the 
employee ;  and  since  it  is  ordinarily  his  duty  to  take  some 
precautions  for  his  own  safety  when  engaged  in  a  hazard- 
ous occupation,  contributory  negligence  is  sometimes  de- 
fined as  a  failure  to  use  such  care  for  his  safety  as  ordinarily 
prudent  employees  in  similar  circumstances  would  use.  On 
the  other  hand,  the  assumption  of  risk,  even  though  the  risk 
be  obvious,  may  be  free  from  any  suggestion  of  fault  or 
negligence  on  the  part  of  the  employee.  The  risk  may  be 
present,  notwithstanding  the  exercise  of  all  reasonable  care 
on  his  part.  Some  employments  are  necessarily  fraught 
with  danger  to  the  workman — danger  that  must  be  and  is 
confronted  in  the  line  of  duty.  Some  dangers  as  are  nor- 
mally and  necessarily  incident  to  the  occupation  are  pre- 
sumably taken  into  the  account  in  fixing  the  rate  of  wages. 
And  a  workman  of  mature  years  is  taken  to  assume  risks 
of  this  sort,  whether  he  is  actually  aware  of  them  or  not. 
But  risks  of  another  sort,  not  naturally  incident  to  the 
occupation,  may  arise  out  of  the  failure  of  the  employer  to 
exercise  due  care  with  respect  to  providing  a  safe  place  of 
[to]  work  and  suitable  and  safe  appliances  for  the  work. 
These  the  employee  is  not  treated  as  assuming  until  he 
becomes  aware  of  the  defect  or  disrepair  and  of  the  risk 
arising  from  it,  unless  defect  and  risk  alike  are  so  obvious 


2  Section  8  of  statute.    The  statute  U.  S.  1;  25  Sup.  Ct.  158;  49  L.  Ed. 

referred  to  in  this  section  is  the  one  363,  reversing  117  Fed.  462;  54  C.  C. 

that    was    declared    unconstitutional  A.  508. 
in  Johnson  v.  Southern  Pac.  Co.  196 


200  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

that  an  ordinarily  prudent  person  under  the  circumstances 
would  have  observed  and  appreciated  them.  These  distinc- 
tions have  been  recognized  and  applied  in  numerous  cases 
of  this  court.^  When  the  employee  does  know  of  the  defect, 
and  appreciates  the  risk  that  is  attributable  to  it,  then  if 
he  continues  in  the  employment  without  objection,  or  with- 
out obtaining  from  the  employer  or  his  representatives  an 
assurance  that  the  defect  will  be  remedied,  the  employee 
assumes  the  risk,  even  though  it  arises  out  of  the  master's 
breach  of  duty.  If,  however,  there  be  a  promise  of  repara- 
tion, then  during  such  time  as  may  be  reasonably  required 
for  its  performance,  or  until  the  particular  time  specified 
for  its  performance,  the  employee,  relying  upon  the  promise, 
does  not  assume  the  risk  unless  at  least  the  danger  be  so  im- 
minent that  no  ordinarily  prudent  man  under  the  circum- 
stances would  rely  upon  such  promise."* 

§  125.  To  what  "statute"  reference  is  made. — The  "stat- 
ute" referred  to  in  the  second  section  above  is  a  statute  of 
the  United  States  and  not  a  statute  of  a  state,  much  less  an 
ordinance  of  a  municipality.  To  construe  the  word  "stat- 
ute" to  mean  a  state  statute  would  render  the  Employers' 
Liability  Act  of  uneven  effect  throughout  the  United  States 
and  perhaps  render  it  obnoxious  to  the  fifth  amendment  of 
the  constitution,  and  also,  no  doubt  in  many  instances  ex- 
tending the  power  of  Congress  over  interstate  commerce  to 
cases  not  falling  within  the  scope  of  interstate  commerce.  "It 

'Citing  Choctaw,  O.  &  G.  R.  Co.  217;  Southwestern  Brewery  &  Ice  Co. 

191  U.  S.  694;  24  Sup.  Ct.  24;  48  L.  Ed.  v.  Schmidt,  226  U.  S.  162;  33  Sup.  Ct. 

96;  15  Am.  Neg.  Rep.  230;  Schlem-  68;  57  L.  Ed.  170. 
mer  v.  Buffalo  &  P.  R.  Co.  220  U.  S.  "This  branch  of  the  law  seems  to 

590;  31  Sup.  Ct.  561;  55  L.  Ed.  596;  be   traceable   to   Holmes   v.    Clarke; 

Texas  &  P.   R.  Co.  v.   Harvey,  228  6  Hurlst.  &  N.  349;  30  L.  J.  Exch. 

U.  S.  521;  33  Sup.  Ct.  518;  57  L.  Ed.  (N.  S.)   135;  7  Jur.   (N.  S.)  397;  3 

8.52;  Gila  Valley,  G.  &  N.  R.  Co.  v.  L.   T.    (N.    S.)    675;   9   W.    R.   419; 

Hall,  232  U.  S.  94;  34  Sup.  Ct.  229;  Clarke   v.    Holmes,   7   Hurlst.   &   N. 

58  L.  Ed.  521.  937;  9  L.  T.  (N.  S.)  178;  10  W.  R. 

*  Seaboard    Air   Line    Ry.    Co.    v.  405,"    adds    the    court.      Lloyd    v. 

Horton,  233  U.  S.  492;  34  Sup.  Ct.  Southern  Ry.  Co.   166  N.  C.  24;  81 

635;   .57   L.   Ed.   907,    reversing    162  S.  E.  1003;  Wright  v.  Yazoo  &  M.  V. 

N.  C.  424;  78  N.  E.  494;  Hough  -'.  R.  Co.  197  Fed.  94. 
T.  P.  R.  Co.  100  U.  S.  213;  25  L.  Ed. 


ASSUMPTION    OF    RISK.  201 

is  not  to  be  conceived  that,  in  enacting  a  general  law  for  es- 
tablishing and  enforcing  the  responsibility  of  common  car- 
riers by  railroad  to  their  employees  in  interstate  commerce, 
Congress  intended  to  permit  the  legislatures  of  the  several 
states  to  determine  the  effect  of  contributory  negligence  and 
assumption  of  risk,  by  enacting  statutes  for  the  safety  of  em- 
ployees, since  this  would  in  effect  delegate  to  the  state  two  of 
the  essential  factors  that  determine  the  responsibility  of  the 
employer."^  But  this  does  not  dispose  of  the  railway  com- 
pany's liability  to  an  employee  where  his  injuries  were 
occasioned  by  the  company's  violation  of  a  valid  state  stat- 
ute. As  for  instance,  the  failure  of  a  locomotive  engineer 
to  give  the  required  statutory  signals  at  a  railway  or  high- 
way crossing  whereby  a  collision  with  another  train  or  a 
traveler  is  occasioned,  the  train  derailed  and  an  employee 
on  the  train  is  injured.  Other  instances  might  possibly  be 
suggested.  In  such  an  instance,  no  doubt,  the  state  statute 
could  be  pleaded  to  show  the  statutory  negligence  of  the 
railway  company  and  thus  gives  the  employee  a  cause  of 
action  which  possibly  he  might  not  otherwise  have  had.^ 
Yet  here  we  are  treading  on  dangerous  ground,  especially 
in  view  of  a  recent  decision  of  the  Federal  Supreme  Court, 
where  it  was  claimed  that  an  instrument  on  a  locomotive 
known  as  a  water  gauge  was  absent,  when  it  should  not 
have  been.    In  that  case  the  trial  court  recognized  that  the 


'  Seaboard    Air    Line    R.    Co.    v.  Howard  case,  cited  here  in  the  Em- 

Horton,  233  U.  S.  492;  34  Sup.  Ct.  ployers'   Liability   Cases,   207   U.   S. 

635;  58  L.  Ed.  1062,  reversing  162  N.  463;  28  Sup.  Ct.  143;  56  L.  Ed.  327, 

C.  424;  78  S.  E.  494;  American  R.  affirming  148  Fed.  997.     Some  little 

Co.  V.  Birch,  224  U.  S.  547;  32  Sup.  analogy  can  be  drawn  from  the  case 

Ct.  603;  57  L.  Ed.  879;  Gee  v.  Lehigh  of  Waymen  v.  Southard,  10  Wheat. 

Valley  R.  Co.  (App.  Div.)  148  N.  Y.  1;   holding  that  the  Kentucky  law  of 

Supp.    882;    Southern    Ry.    Co.    v.  executions,  passed  subsequent  to  the 

Howerton    (Ind.)    105    N.    E.    1025;  Federal  Process  Act,  was  not  applic- 

Lauer    v.    Northern    Pac.    Ry.    Co.  able  to   execution    which   issued    on 

(Wash.);    145    Pac.    606    (overruling  judgments      rendered      by      Federal 

Opsahl    V.    Northern    Pac.    Ry.    Co.  Courts.    See  also  Mutual   Life    Ins. 

78  Wash.  197;  138  Pac.  681;  Kirbo  Co.  v.  Prewitt,  31  Ky.  L.  Rep.  1319; 

V.    Southern    Ry.    Co.    (Ga.    App.)  105   S.   W.   463.     Yet  see  Michigan 

84  S.  E.  491.  Central  R.  Co.  v.  Vreeland,  227  U.  S. 

«See  Opsahl  v.  Northern  Pac.  Ry.  59;  33  Sup.  Ct.  192;  57  L.  Ed.  192, 

Co.  78  Wash.  197;  139  Pac.  681;  Cin-  reversing  189  Fed.  495. 
cinnati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Violation  of  Hours  of  Service  Act, 

Swann,  160  Ky.  458;  169  S.  W.  886.  see  Schweig  v.  Chicago,  M.  &  St.  P. 

This  is  the  logical  conclusion  of  the  Ry.  Co.  216  Fed.  750. 


202  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

act  of  Congress  applied  as  far  as  its  terms  extended,  and 
that  by  its  terms  the  employee  is  not  to  be  held  to  have 
assumed  the  risk  in  any  case  where  the  violation  of  a  car- 
rier of  a  statute  enacted  for  the  safety  of  employees  con- 
tributed to  the  injury,  at  the  same  time  held  that,  since  no 
statute  had  been  enacted  covering  such  an  appliance  as  the 
glass  water  gauge,  the  rights  of  the  plaintiff  were  such  as 
he  would  have  under  the  state  law,  "It  is  true,"  said  the 
Federal  Supreme  Court,  "that  such  an  appliance  as  the 
water  gauge  and  guard  glass  in  question  is  not  covered  by 
the  provisions  of  the  Safety  Appliance  Act,  or  any  other 
law  passed  by  Congress  for  the  safety  of  employees,  in  force 
at  the  time  this  action  arose.  But  the  necessary  result  of 
this  is  not  to  leave  the  employer  responsible  for  the  conse- 
quences of  any  defect  in  such  an  appliance,  excluding  the 
common  law  rule  as  to  assumption  of  risk,  but  to  leave  the 
matter  in  this  respect  open  to  the  ordinary  application  of 
the  common  law  rule.  The  adoption  of  the  opposite  view 
would  in  effect  leave  the  several  state  laws,  and  not  the  act 
of  Congress,  to  control  the  subject-matter."" 

§  126.  Assumption  of  risk  only  abolished  in  part. — It  is 
only  where  the  injury  is  contributed  to  by  a  violation  of  a 
Federal  statute,  by  the  common  carrier,  enacted  for  the 
safety  of  employee,  that  the  rule  of  assumption  of  risk  is 
abolished;  in  all  other  instances  it  remains  in  force.^  "It 
seems  to  us  that  section  four,  in  eliminating  the  defense  of 
assumption  of  risk  in  the  cases  indicated,  quite  plainly 
evidence  the  legislative  intent  that  in  all  other  cases  such 
assumption  shall  have  its  former  effect  as  a  complete  bar  to 
the  action.  And  taking  sections  three^  and  four  together, 
there  is  no  doubt  that  Congress  recognized  the  distinction 
between  contributory  negligence  and  assumption  of  risk; 
for,  while  it  is  declared  that  neither  of  these  shall  avail  the 

^  Seaboard    Air    Line    R.    Co.    v.  '  Section  4  of  Federal  Act.    Kansas 

Ilorton,  228  U.  S.  4.33;  34  Sup.  Ct.  City    Southern    Ry.    Co.    v.    Loesey 

f).37;  57  L.  Ed.  907,  roversiii^  102  N.  (Ark.)     177    S.    W.    875;    Cross    v. 

C.    424;    78    S.    E.    4!)4;  Spindcn    v.  ChicaRo,  B.  &  Q.  R.  Co.  (Mo.  App.) 

Atdii.son,  T.  &  S.  F.  Hy.  Co.  (Kaji.)  177  S.  W.  1127;  Texas  &  P.  Ry.  Co. 

148     Pac.    747;    Collelli     v.    Turner  v.  White  (Te.\.  Civ.  App.)  177  S.  W. 

CN.  Y.)   109  N.  E.  8,3,  aflirmiiiK  154  1185. 

App.  Div.  218;  138  N.  Y.  Supp.  900.  "The  relief  benefit  section. 


ASSUMPTION    OF    RISK. 


203 


carrier  in  cases  where  the  violation  of  a  statute  has  con- 
tributed to  the  injury  or  death  of  the  employee,  there  is, 
with  respect  to  cases  not  in  this  category,  a  limitation  upon 
the  effect  that  is  to  be  given  to  contributory  negligence, 
while  no  corresponding  limitation  is  imposed  upon  the  de- 
fense of  assumption  of  risk — perhaps  none  was  deemed 
feasible."^"  Thus  an  engine  repairer  working  about  an  open 
car  pit,  where  he  was  required  to  work  in  the  course  of  his 
employment,  was  held  to  assume  the  risk  of  injury  by  fall- 
ing into  it.^^    And  the  same  ruling  was  made  where  a  brake- 


"  Seaboard  Air  Line  Ry.  Co.  v. 
Horton,  228  U.  S.  433;  34  Sup.  Ct. 
635;  57  L.  Ed.  907;  Southern  Ry. 
Co.  V.  Jacobs  (Va.)  SI  S.  E.  99; 
Freeman  v.  Powell,  105  Tex.  317; 
148  S.  W.  290;  144  S.  W.  1033. 

"When,  in  Section  3,  Congress 
deals  with  contributory  negUgence, 
it  forbids  that  defense  wholly  in 
cases  where  the  common  carrier  has 
violated  a  statute  enacted  for  the  safe- 
ty of  its  employees,  and  such  violation 
contributed  to  the  injury  or  death 
of  the  employee.  The  same  idea 
runs  through  Section  4,  and  the 
doctrine  of  assumed  risks  is  wholly 
excluded  where  the  damages  arose 
from  the  \iolation  by  the  common 
carrier  of  a  statute  enacted  for  the 
safety  of  the  employee.  The  lan- 
guage employed  is  plain  and  easy 
to  be  understood,  and  leaves,  we 
think,  except  in  the  particulars 
mentioned,  the  defense  of  assumption 
of  risks  in  full  force  and  vigor." 
Southern  Ry.  Co.  v.  Jacobs  (Va.) 
81  S.  E.  99;  Bowers  v.  Southern  Ry. 
Co.  10  Ga.  App.  367;  73  S.  E.  677; 
Barker  v.  Kansas  City,  M.  &  O.  Ry. 
Co.  88  Kan.  767;  129  Pac.  1151;  43 
L.  R.  A.  (N.  S.)  1121;  Central  Ver- 
mont Ry.  Co.  v.  Bethune,  206  Fed. 
868;  124  C.  C.  A.  528;  Gulf,  Colo- 
rado, etc.,  Ry.  Co.  v.  McGinnis, 
228  U.  S.  173;  33  Sup.  Ct.  426;  57 
L.  Ed.  785;  Mondon  v.  New  York 
N.  H.  &  H.  R.  R.  Co.  223  U.  S.  1 
32  Sup.  Ct.  169;  56  L.  Ed.  327 
38  L.  R.  A.  (N.  S.)  44;  Southern  Ry. 
Co.  v.  Crockett,  234  U.  S.  725;  34 


Sup.  Ct.  897;  58  L.  Ed.  1564;  La  Mere 
V.  Railway  Transfer  Co.  125  Minn. 
159;  145  N.  W.  1068;  Galveston, 
H.  &  S.  Ry.  V.  Bosher  (Tex.  Civ. 
App.)  165  S.  W.  93;  Baltimore  & 
O.  R.  Co.  V.  Whitacre  (Md.)  92  Atl. 
1060;  Kirbo  v.  Southern  Ry.  Co. 
(Ga.  App.)  84  S.  E.  491;  Southern 
Ry.  Co.  V.  Howerton  (Ind.)  105  N. 
E.  1025;  Neil  v.  Idaho  &  W.  N.  R.  R. 
22  Idaho  74;  125  Pac.  331;  Fish  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.  (Mo.) 
172  S.  W.  340;  Thornton  v.  Sea- 
board Air  Line  Rv.  98  S.  C.  348; 
82  S.  E.  433;  Chesapeake  &  O.  Ry. 
Co.  V.  DeAtley,  159  Ky.  687;  167 
S.  W.  933;  Truesdell  v.  Chesapeake 
&  O.  Ry.  Co.  (Ky.)  169  S.  W.  471; 
Glenn  v.  Cincinnati,  N.  O.  &  T.  P. 
R.  Co.  157  Ky.  453;  163  N.  W.  461; 
Ft.  Worth  &  D.  C.  Ry.  Co.  v.  Cope- 
land  (Tex.  Civ.  App.)  164  S.  W. 
857;  Farley  v.  New  York,  N.  H.  & 
H.  R.  R.  Co.  (Conn.)  91  Atl.  650; 
Guana  v.  Southern  Ry.  Co.  15  Ariz. 
413;  139  Pac.  782;  New  York,  N.  H. 
&  H.  R.  R.  Co.  V.  Vizvori,  210  Fed. 
118;  126  C.  C.  A.  632;  Parker  v. 
Atlantic  City  R.  Co.  (N.  J.  L.)  93 
Atl.  574;  Hawkins  v.  St.  Louis  & 
S.  F.  R.  Co.  (Mo.  App.)  174  S.  W. 
129;  KIcDonald  v.  Railway  Transfer 
Co.  121  Minn.  273;  141  S.  W.  177; 
Walsh  V.  Lake  Shore  &  M.  S.  Ry. 
Co.  (Mich.)  151  N.  W.  754;  Michigan 
Central  R.  Co.  v.  Schafifer,  220  Fed. 
809. 

'^  Glenn  v.  Cincinnati,  N.  O.  & 
T.  P.  Ry.  Co.  157  Ky.  453;  163  N.  W. 
461. 


204  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

man  was  jarred  from  his  train  by  an  unusual  jerk/-  Where 
a  train  detective  went  between  cars  in  a  switch  yard  when 
those  in  charge  of  the  train  did  not  know  of  his  presence, 
which  he  had  purposely  concealed,  it  was  held  that  he  had 
assumed  the  risk  of  injury  by  the  movement  of  the  train.^^ 
A  section  hand  assisting  in  moving  rails  was  held  to  have 
assumed  the  risk  of  injury  from  the  rebound  of  a  rail  as 
it  was  dropped  into  place. ^*  So  it  was  held  that  a  switch- 
man assumed  the  risk  of  injury  from  the  shunting  of  cars 
on  a  side  track  without  warning  and  with  no  one  in  charge, 
when  that  was  the  customary  way  of  handling  cars  in 
switch  yards. ^^  And  a  like  ruling  was  made  where  a  car 
inspector  familiar  with  the  surroundings  was  caught  be- 
tween parallel  tracks  situated  so  close  together  that  a  man 
could  not  go  between  cars  on  the  two  tracks  in  safety.^^  So 
where  the  court  told  the  jury  that  if  the  plaintiff  knew  of 
the  pile  of  cinders  along  the  track  and  continued  to  work 
without  complaint  he  did  not  assume  the  risk,  it  was  held 
that  the  statement  was  erroneous.^^  The  Federal  Act  was 
held  not  to  apply  to  an  instance  where  a  brakeman  fell  into 
a  cinder  pit,  his  duties  bringing  him  into  no  intimate  con- 
nection with  it.^^ 

12  Chesapeake    &    0.    Ry.    Co.    v.  Sauter,    223    Fed.    604;    and    if   the 

Walker,  159  Ky.  237;  167  S.  W.  128.  defense  is  not  presented  on  the  trail, 

Compare  Cincinnati,  N.  0.  &  T.  P.  it    cannot   be   presented   on    appeal. 

Rv.  Co.  V.  Goldston,   156  Ky.  410;  Sweet  v.  Chicago  &  N.  W.  Ry.  Co. 

161  S.  W.  246.  157  Wis.  400;  147  N.  W.  1054. 

'3  Helm  V.  Cincinnati,  N.  0.  &  T.  State   courts  apply  their  own  rules 

P.  Ry.  Co.  156  Ky.  240;  160  S.  W.  of   assumption   of   risk   and   are   not 

945.  bound  by  the  decisions  of  the  Federal 

^*  Truesdell    v.    Chesapeake   &    O.  Courts.     Hasket  v.  Lush  (Mo.  App.) 

Ry.  Co.  159  Ky.  718;  169  S.  W.  471.  177  S.  W.  712;  Hawkins  v.  St.  Louis 

"  Ft.  Worth  &  D.  C.   Ry.  Co.  v.  &  S.  F.  R.  Co.  (Mo.  App.)  174  S.  W. 

Copeland  (Tex.)  164  S.  W.  857.  129;  Fish  v.  Chicago,  R.  I.  &  P.  Ry. 

»« Central    Vermont    Rv.    Co.    v.  Co.   (Mo.)   172  S.  W.  340;  Cross  v, 

Bethune,  206  Fed.  868;  124  C.  C.  A.  Chicago,  B.  &  Q.  R.  Co.  (Mo.  App.) 

528.     See  also  Farley  v.  New  York,  177  S.  W.  1127. 
N.   H.  &  H.   R.  R.  Co.   (Conn.)  91  As  to  review  in  the  Federal  Supreme 

Atl.  650.  Court   where   a   state   court   decided 

"  Southern  Ry.  Co.  v.  Jacobs  (Va.)  against    the    plaintiff    that    the    de- 

81 S.  E.  99.  fendant    could    not    defend    if    the 

"  Baltimore  &  O.  R.  Co.  v.  Whit-  assumption   of   risk   at   common   law 
acre  (.Md.j  92  Atl.  1060.  applied.    Southern  Ry.  Co.  v.  Crock- 
How  the  defense  of  assumed  risk  ett.  234  U.  S.  725;  34  Sup.  Ct.  897; 
must  be  presentcid  depends  upon  the  58  L.  Ed.  1564. 

local    practice.      In    some    states    it  If  the  complainant  does  not  state 

must   be   pleaded   and    proven   as   a  facts    showing    a    violation    of    the 

defenHC.     Illinois  Central   R.   Co.   v.  Federal  Act,  it  will  be  construed  that 

Dougherty,  153  Ky.  363;  155  S.  W.  the  j)l;iiritifT  assumed  all  common 
1119;   Columbia  <fe   P.   S.   R.  Co.   v. 


ASSUMPTION    OF    RISK.  205 

§  127.  The  Horton  case  as  an  example  of  assumption  of 
risk — Instructions. — The  Hortou  case  was  an  instance  of  a 
locomotive  engineer  injured  by  the  bursting  of  an  ordinary 
glass  two  or  three  inches  wide,  eight  or  nine  inches  long,  and 
about  half  an  inch  thick,  known  as  a  guard  glass  on  a  Buck- 
ner  water  gauge,  a  device  attached  to  the  engineer's  loco- 
motive boiler  for  the  purpose  of  showing  the  level  of  the 
water  in  the  boiler.  The  guard  consisted  of  a  brass  frame 
or  case  inclosing  a  thin  glass  tube  which  communicated  with 
the  boiler  above  and  below  in  such  manner  that  the  tube 
received  water  and  steam  direct  from  the  boiler  and  under 
the  full  boiler  pressure.  In  order  to  shield  the  engineer 
from  injury  in  case  of  the  bursting  of  the  tube,  this  guard 
glass  was  used.  There  were  slots  for  receiving  the  guard 
glass  and  holding  it  in  position  in  front  of  the  water  tube. 
At  each  end  of  the  tube  valves  were  provided  for  the  pur- 
pose of  disconnecting  it  from  the  boiler.  The  plaintiff 
knew  full  well  the  importance  of  this  guard  glass.  On  the 
day  he  was  injured,  full  well  knowing  that  the  guard  glass 
was  missing,  he  took  out  his  locomotive,  and  in  the  operation 
of  his  engine  this  guard  exploded  and  injured  him.  The 
plaintiff  knew  that  for  a  week,  during  which  he  operated 
his  locomotive,  the  guard  glass  was  absent.  The  defendant 
requested  the  court  to  instruct  the  jury  that  if  it  found 
"by  a  preponderance  of  the  evidence  that  the  water  glass 
on  the  engine  on  which  plaintiff  was  employed  was  not  pro- 
vided with  a  guard  glass,  and  the  condition  of  the  glass  was 
open  and  obvious  and  was  fully  known  to  the  plaintiff,  and 
he  continued  to  use  such  water  glass  with  such  knowledge 
and  without  objection,  and  that  he  knew  the  risk  incident 
thereto,  then  the  court  charges  you  that  the  plaintiff  volun- 
tarily assumed  the  risk  incident  to  such  use,  and  you  will 
answer  the  second  issue  'yes.'  "  The  court  gave  this  in- 
struction as  applicable  to  the  issue  of  contributory  negli- 

law  risks.     Guana  v.  Southern  Pac.       City,  M.  &  O.  Ry.  Co.  88  Kans.  767; 

Co.  15  Ariz.  413;  139  Pac.  782;  Free-       129  Pac.  1151;  43  L.  R.  A.  (N.  S.) 

man    v.    Powell,    (Tex.    Civ.    App.)       1121. 

144  S.  W.   1033;  Barker  v.  Kansas  The  law  of  the  assumption  of  risk, 

where  the  Federal  Statute  is  involved, 
is  that  of  the  common  law  as  it  existed 
prior  to  the  passage  of  that  statute. 
St.  Louis  &  S.  F.  R.  Co.  v.  Snowden 
(Okla.)  149  Pac.  1083. 


206  FEDERAL    EMPLOYERS'    LIABILITY    ACT, 

gence,  and  instead  of  the  words,  ''then  the  court  charges 
you  that  the  plaintiff  voluntarily  assumes  the  risk  incident 
to  such  use,  and  you  will  answer  the  second  issue  'yes,'  " 
used  the  words,  "then  the  court  charges  you  that  the  plain- 
tiff was  guilty  of  contributory  negligence,  and  you  will 
answer  the  third  issue  'No.'  "  In  another  instruction  the 
court  had  told  the  jury  that  "a  man  assumes  the  risk  when 
he  takes  employment,  incident  to  the  class  of  work  which 
he  is  to  perform,"  but  "he  does  not  assume  the  risk  inci- 
dent to  the  negligence  of  his  employer  in  providing  machin- 
ery and  appliances  with  which  he  has  to  work;"  and  then 
the  court  gave  this  instruction:  "On  the  other  hand,  the 
employer  has  the  right  to  assume  that  his  employee  will  go 
about  his  work  in  a  reasonably  safe  way,  and  give  due  re- 
gard to  the  machinery  and  appliances  which  are  in  his  hands 
and  under  his  control,  and  if  you  should  find  from  the  evi- 
dence by  its  greater  weight  (because  the  burden  in  this  in- 
stance is  on  the  defendant),  that  the  plaintiff  knew  of  the 
absence  of  the  guard  or  shield  to  the  water  gauge  and  failed 
to  give  notice^^  to  the  defendant  or  to  the  agent  whose  duty 
it  was  to  furnish  the  water  gauge  and  appliances,  and  he 
continued  to  use  it  without  giving  that  notice,  it  being  fur- 
nished to  him  in  a  safe  place,  then  he  assumed  the  risk  inci- 
dent to  his  work  in  the  engine  with  the  glass  water  gauge 
in  that  condition,  although  he  might  have  handled  his  en- 
gine in  every  other  respect  with  perfect  care."  The  court's 
action  in  giving  the  instructions,  and  in  refusing  those 
asked,  was  held  to  be  error.  "By  the  instructions  as  given," 
said  Judge  Pitney,  "the  application  of  the  rule  of  assumed 
risk  was  confined  to  the  single  hypothesis  that  the  jury 
should  find  the  guard  glass  was  in  position  when  the  engine 
was  delivered  to  plaintiff  on  the  morning  of  July  27.  This, 
as  already  pointed  out,  was  one  of  the  questions  in  dispute; 
plaintiff  having  testified  that  the  guard  glass  was  missing 
at  that  time,  while  his  fireman  testified  (and  in  this  was 
corroborated   by   circumstantial    evidence)    that   it   was   in 

'"  On  this  question  there  was  some  conflict  of  evidence. 


ASSUMPTION    OF    RISK,  207 

place  at  that  time,  and  was  subsequently  broken.  But  by 
the  common  law,  with  respect  to  the  assumption  by  the  em- 
ployee of  the  risk  of  injuries  attributable  to  defects  due  to 
the  employer's  negligence,  when  known  and  appreciated  by 
the  employee,  and  not  made  the  subject  of  objection  or 
complaint  by  him,  it  is  quite  immaterial  whether  the  defect 
existed  when  the  appliance  was  first  placed  in  his  charge, 
or  subsequently  arose.  Hence,  if  the  guard  glass  was  miss- 
ing when  plaintiff  first  took  the  engine,  as  he  testified,  and 
he,  knowing  of  its  absence  and  the  consequent  risk  to  him- 
self, continued  to  use  the  water  gauge  without  giving  notice 
of  the  defect  to  the  defendant  or  its  representative,  he 
assumed  the  risk.  Defendant  was  entitled  to  have  the  re- 
quested instruction  given  respecting  assumption  of  risk,  and 
as  the  charge  actually  given  did  not  cover  the  same  ground, 
there  was  error. "-° 

§  128.  Violation  of  Federal  Statute  enacted  for  safety  of 
employees. — The  employee  can  not  be  held  "to  have  as- 
sumed the  risk  of  his  employment  in  any  case  where  the 
violation  by  such  common  carrier  of  any  [Federal]  statute 
enacted  for  the  safety  of  employees  contributed  to"  his 
injury  or  death. -^  As  we  have  seen,  the  statute  violated 
must  be  not  only  a  Federal  Statute,  but  it  must  be  one 
"enacted  for  the  safety  of  employees"  of  the  carrier. 
"Congress  evidently  intended  Federal  Statutes,  such  as  the 
Safety  Appliance  Acts-  and  the  Hours  of  Service  Act."'^ 

*"  Seaboard    Air    Line    R.    Co.    v.  "i  Section  4  of  statute. 

Horton,  228  U.  S.  433;  34  Sup.  Ct.  2^27  stat.  at  L.  531,  chap.   196; 

635;   57   L.   Ed.   907,   reversing   162  U.    S.    Comp.    Stat.    1901,    p.    3174; 

N.  C.  424;  78  S.  E.  494.    See  Bower  32  Stat,  at  L.  943,  chap.  976;  U.  S. 

V.  Chicago  &  N.  W.  R.  Co.  96  Neb.  Comp.  Stat.  1911,  p.  1314;  36  Stat. 

419;    148   N.   W.    145;   Gila   Valley,  at  L.  298,  chap.   160;  U.  S.   Comp. 

Globe  &  N.   Ry.   Co.  v.   Hall,   232  Stat.  Supp.  1911,  p.  1327;  id.  1913, 

U.  S.  101;  34  Sup.  Ct.  229;  58  L.  Ed.  chap.  103;  U.  S.  Comp.  Stat.  Supp. 

521.  1911,  p.  1333. 

The  servant  does  not  assume  the  -^  34  Stat,  at  L.  1415,  chap.  2939; 

master's     negligence.       Hawkins     v.  U.  S.  Comp.  Stat.  Supp.  1911,  p.  1321. 

St.  Louis  &  S.  F.  R.  Co.  (Mo.  App.)  Seaboard  Air  Line  R.  Co.  v.  Horton, 

174  S.   W.    129;   nor  the   negligence  228  U.  S.  433;  34  Sup.  Ct.  635;  57 

of  a  fellow  servant.     Erie  R.  Co.  v.  L.  Ed.  907.  reversing  162  N.  C.  424; 

Jacobus,  221  Fed.  335.  78  N.  E.  494.    Hours  of  Service  Act. 

Schweig  V.  Chicago,  M.  &  St.  P.  Ry. 
Co.  216  Fed.  750. 


208 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


"The  rule  that  an  employee  was  deemed  to  have  assumed 
the  risk  of  injury,  even  if  due  to  the  employer's  negligence, 
where  the  employee  voluntarily  entered  or  remained  in  the 
service  with  an  actual  or  pr(  sumed  knowledge  of  the  con- 
ditions out  of  which  the  risk  arose,  is  abrogated  in  all  in- 
stances where  the  employer's  violation  of  a  statute  enacted 
for  the  safety  of  the  employees  contributed  to  the  injury."-* 
The  doctrine  of  assumed  risk  does  not  apply  to  defects  cov- 
ered by  the  Safety  Appliance  Act.-^  Knowledge  of  the  de- 
fective condition  of  an  appliance  covered  by  the  Federal 
Safety  Appliance  Act  does  not  impose  upon  the  employee 
an  assumption  of  risk  of  injury  from  such  defect.-*'  There 
is  no  assumption  of  risk  for  an  injury  occasioned  by  a  de- 
fective ash  pan.-' 


§  129.     Negligence  of  carrier  or  a  fellow  servant. — The 

emplo3'ee  does  not  assume  the  risk  of  injury  arising  out  of 
negligence  of  the  employer-^  or  a  fellow  servant.-*^    Thus  an 


"Mondon  v.  New  York,  N.  H. 
&  H.  R.  R.  Co.  223  U.  S.  1;  32  Sup. 
Ct.  169;  56  L.  Ed.  327;  38  L.  R.  A. 
(N.  S.)  44;  Bowers  v.  Southern  Ry. 
Co.  10  Ga.  App.  367;  73  S.  E.  677; 
Barker  v.  Kansas  City,  M.  &  O. 
Ry.  Co.  88  Kan.  767;  129  Pac.  1151; 
43  L.  R.  A.  (N.  S.)  1121;  Central 
Vermont  R.  Co.  v.  Bethune,  206 
Fed.  868;  124  C.  C.  A.  528;  Southern 
Ry.  Co.  V.  Jacobs  (Va.)  81  S.  E.  99; 
Parker  v.  Atlantic  City  R.  Co. 
(N.  J.  L.)  93  Atl.  574. 

''^  Southern  Ry.  Co.  v.  Crockett, 
234  U.  S.  725;  34  Sup.  Ct.  897;  58 
L.  Ed.  1564;  Nashville,  C.  &  St.  L. 
Ry.  Co.  V.  Henry,  158  Ky.  88;  164 
S.  W.  310;  Chicago,  R.  I.  &  P.  R. 
Co.  V.  Brown,  229  U.  S.  317;  33  Sup. 
Ct.  840;  57  L.  Ed.  1204;  St.  Louis. 
I.  M.  &  S.  R.  Co.  V.  McWhirter, 
229  U.  S.  265;  33  Sup.  Ct.  858; 
57  L.  Ed.  1179;  Thornbro  v.  Kansas 
City,  M.  &  O.  Ry.  Co.  91  Kas.  684; 
139  Pac.  410;  Boldt  v.  Pennsylvania 
R.  Co.  218  Fed.  367;  Sears  v.  Atlantic 
C.  L.  R.  Co.  (N.  C.)  86  S.  E.  176. 

"Nashville,  C.  &  St.  L.  Ry.  Co. 
V.  Henry,  158  Ky.  88;  164  S.  W.  310; 
Grand  Trunk  W.  Ry.  Co.  v.  Lindsay, 
233  U.  S.  42;  34  Sup.  Ct.  581;  58 
L.  Ed.  828,  affirming  201  Fed.  836; 
120  C.  C.  A.  166. 

"Lloyd  V.  Southern  Ry.  Co.  166 
N.  C.  24;  81  S.  E.  1003;  Gulf,  Colo- 
rado, etc.,  Ry.  Co.  v.  McGinnis, 
228  U.  S.  173;  33  Sup.  Ct.  426;  57 
L.  Ed.  785. 

In  Opsahl  v.  Northern  Pac.  Ry. 
Co.   78   Wash.   197;   138  Pac.   681, 


in  an  action  under  the  Federal  statute 
it  was  held  that  a  servant  did  not 
assume  the  risk  of  injury  from  the 
use  of  a  grindstone  under  power 
which  had  holes  in  its  surface,  and 
the  guard  was  out  of  order,  even 
though  he  had  knowledge  of  the 
same,  a  state  statute  providing 
that  if  any  machine  is  in  a  defective 
condition,  making  it  extra  hazardous, 
its  use  is  prohibited. 

-*  Thornton  v.  Seaboard  Air  Line 
Ry.  98  S.  C.  348;  82  S.  E.  433; 
Wright  v.  Yazoo  &  M.  V.  R.  Co. 
197  Fed.  94;  Louisville  &  N.  R.  Co. 
V.  Fleming  (Ala.)  69  So.  125.  He  does 
not  assume  such  risk  even  though  he 
himself  be  guilty  of  contributory 
negligence.  Hackney  v.  Missouri, 
K.  &  T.  Ry.  Co.  (Kan.)  149  Pac.  421. 

29  Erie  R.  Co.  v.  Jacobus,  221  Fed. 
335;  Pittsburgh,  C.  C.  &  St.  L.  R. 
Co.  v.  Farmers'  T.  &  S.  Co.  (Ind.) 
108  N.  E.  108;  Gekas  v.  Oregon-W. 
R.  &  N.  Co.  (Ore.)  146  Pac.  970; 
Caverhill  v.  Boston  &  M.  R.  R. 
77  N.  H.  330;  91  Atl.  917;  Sweet  v. 
Chicago  &  N.  W.  R.  Co.  157  Wis. 
400;  147  N.  W.  1054;  Devine  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.  185 
111.  App.  488;  affirmed  107  N.  E. 
595;  Easter  v.  Virginian  Ry.  Co. 
(W.  Va.)  86  S.  E.  37;  Martin  v. 
Atchison,  T.  &  S.  F.  R.  Co.  (Kan.) 
145  Pac.  849;  Walsh  v.  Lake  Shore 
&  M.  S.  Ry.  Co.  (Mich.)  151  N.  W. 
754;  Cincinnati,  N.  O.  &  T.  P.  Ry. 
Co.  V.  Wilson,  161  Ky.  640;  171  S. 
W.  430. 


ASSUMPTION    OF    RISK.  209 

engineer  does  not  assume  the  risk  of  being  injured  by  his 
employer's  negligence  in  leaving  cars  on  a  siding  within 
striking  distance  of  the  engineer's  train.^°  This  is  the  logi- 
cal deduction  from  that  provision  of  the  Federal  Statute 
which  provides  that  an  interstate  carrier  by  railroad  shall 
be  liable  for  an  injury  to  or  death  of  its  employee  "resulting 
in  whole  or  in  part  from  the  negligence  of  any  of  the  of- 
ficers, agents  or  employees  of  such  carrier. "^^  "In  view  of 
the  first  section  of  the  act  *  *  *  it  is  not  permissible,  in 
my  judgment,  to  hold  that  the  employee  assumes  the  risk 
of  the  officers,  agents,  or  employees  of  the  carrier.  It  is 
insisted  that  since  the  act  provides  that  he  shall  not  be  held 
to  have  assumed  such  risk  in  cases  only  where  the  violation 
by  the  common  carrier  of  any  statute  enacted  for  the  safety 
of  employees  contributed  to  the  injury,  the  maxim  'Ex- 
pressio  unius  est  exclusio  alterius, '  applies.  I  do  not  think 
this  insistence  is  sound.  As  I  construe  the  act,  the  risk 
that  the  employee  now  assumes  is  the  ordinary  danger  in- 
cident to  his  employment,  which  does  not  include,  since  the 
passage  of  this  act,  the  assumption  of  risk  incident  to  the 
negligence  of  the  carrier's  officers,  agents,  or  employees,  or 
any  defect  or  insufficiency  due  to  its  negligence,  in  its  cars, 
engines,  appliances,  machinery,  track,  roadbed,  works, 
boats,  wharves,  or  other  equipment."^-  A  brakeman  on  an 
interstate  train,  after  certain  cars  had  been  coupled  to  other 
cars  on  which  the  air  brakes  were  set,  went  between  the 
cars  to  couple  the  air  hose,  and,  not  knowing  that  the  train 
was  on  a  down  grade,  opened  the  angle  cock  on  the  cars 
nearest  the  engine,  and  then  reached  across  the  buffer  or 
deadwood  to  open  the  angle  cock  on  the  front  end  of  the 
rear  cars,  and  as  he  did  this  the  brakes  were  suddenly  re- 
leased, due  to  the  fact  that  the  engineer  negligently  had 
the  air  lever  in  an  improper  position,   and  the  rear  cars 


3"  Wright  V.   Yazoo  &   M.   V.   R.  Porter,  207  Fed.  311;  Northern  Pac. 

Co.  197  Fed.  94;  Kirbo  v.  Southern  Ry.  Co.  v.  Maerkl,  198  Fed.  1;  117 

Ry.  Co.  (Ga.)  84  S.  E.  491.  C.  C.  A.  237;  Missouri,  K.  &  T.  Ry. 

3'  Section  1  of  Act.  Co.  v.  Freeman  (Tex.)  168  S.  W.  69. 

3- Wright  V.  Yazoo  &  M.  R.  Co. 
197  Fed.  94;  Illinois  Central  R.  Co.  v. 


210  FEDERAL    EMPLQiERS'    LIABILITY    ACT. 

moved  down  and  crushed  him.  It  was  held  that  the  risk  of 
injury  as  the  result  of  such  negligence  was  not  one  of  the 
risks  of  his  employment  that  he  had  assumed.^^  "Where  a 
switchman  jumped  at  a  footboard  on  the  tender  of  an  en- 
gine, missed  his  footing  because  of  the  defective  condition 
of  the  board,  and  was  thrown  down  and  injured,  it  was  held 
it  was  a  question  for  the  jury  whether  the  board  was  a 
"running  board"  within  the  meaning  of  the  Safety  Appli- 
ance Act ;  and  if  it  was,  then  he  was  entitled  to  recover 
under  the  Federal  Liability  Act.^*  But  a  servant  may  as- 
sume the  risk  arising  out  of  the  negligent  conduct  of  his 
fellow;  but  to  make  out  a  defense  that  he  assumed  such  a 
risk  it  must  be  shown  that  the  negligent  conduct  of  the  fel- 
low servant  was  in  fact  known  to  the  plaintiff,  or  was  so 
customary  that  he  should  be  charged  with  knowledge  of 
his  negligent  conduct,  and  that  he  appreciated  or  was  bound 
to  appreciate  his  danger."^ 

§  130.     Defective  cars,  engines,  tracks  and  appliances. — 

The  statute  declares  that  the  carrier  shall  be  liable  for  an 
injury  or  death  resulting  in  whole  or  part  "by  reason  of 
any  defect  or  insufficiency  due  to  its  negligence  in  its  cars, 
engines,  appliances,  machinery,  tracks,  roadbed,  works, 
boats,  wharves,  or  other  equipment."^**     There  are  only  a 

''  Union    Pac.    R.    Co.    v.    Fuller,  this  case,   but  I  believe  I  have  ac- 

204  Fed.  45;  122  C.  C.  A.  359.  curately  stated  the  correct  result  of 

That  the  defense  of  assumption  of  the  decision.     The  Safety  Appliance 

risk  is  of  no  avail  where  a  fellow  ser-  Act  uses  the  term  "running  board." 

vant     has     negligently     caused     the  In    the   complaint   the    phrase  "foot 

injury,  is  universally  held.     Sweet  v.  board"  was  used;  in  one  paragraph 

Chicago  &  N.  W.  Ry.  Co.  157  Wis.  of  the  answer,    "running  board,"   in 

400;   147   N.   W.   1054;   Caverhill  v.  another  "foot  board,"   and   in  cross 

Boston  &  M.   (N.   H.)   91   Atl.  917;  examination   the   plaintiff   was   three 

Southern  Ry.  Co.  v.  Gadd,  207  Fed.  times  asked  by  the  appellant  about 

277;  125  C.  C.  A.  21;  Yazoo  &  M.  R.  the  "running  board."     On  the  trial 

Co.    v.   Wright,    207    Fed.   281;    125  otherwise    the    terms    "foot    board" 

C.  C.  A.  25;  Illinois  Central  R.  Co.  and  "running  board"  were  used  inter- 

v.  Porter,  207  Fed.  311;   125  C.  C.  changeably. 

A.  55;  Pennsylvania  R.  Co.  v.  Cough-  ^^  Michigan     Central     R.     Co.     v. 

man,  208  Fed.  901;  120  C.  C.  A.  39.  Schaffer,  220  Fed.  809. 

"*  Bramlett    v.    Southern    Ky.    Co.  ''  Section  1  of  Act.    In  this  respect 

98  S.  C.  319;  82  S.  E.  501.     There  the  Act  of  1908  is  somewhat  broader 

is  some  confusion  in  the  opinion  in  than  that  of  1906. 


ASSUMPTION    OF    RISK.  211 

few  cases  upon  the  exact  point  where  the  assumption  of  risk 
is  discussed.  The  general  statement  is  that  if  the  servant 
was  injured  "by  reason  of  any  defect  or  negligence  due  to 
its  [the  carrier's]  negligence  in  its  cars,  engines,  appliances, 
machinery,  tracks,  roadbed,  works,  boats,  wharves,  or  other 
appliances"^'  the  carrier  is  liable,  and  in  some  it  is  added 
that  the  servant  did  not  assume  the  risk  by  reason  of  such 
defects.  It  is  very  clear  that  if  the  defect  is  such  as  the 
Safety  Appliance  Act  covers,  he  does  not  assume  the  risk ; 
for  the  statute  expressly  covers  the  case ;  but  it  would  seem 
from  the  case  of  the  Seaboard  Air  Line  Railway  that  in  the 
case  of  user  by  the  servant  of  any  defective  car  or  appli- 
ance under  the  Safety  Appliance  Act,  or  a  statute  enacted 
for  the  protection  of  the  servant,  the  employee  does  assume 
the  risk,  where  he  knows  of  the  defect  or  by  the  use  of  ordi- 
nary diligence  could  have  known  of  it  before  he  was  in- 
jured.^* 

§  131.  Question  if  risk  was  assumed. — Upon  a  given  state 
of  facts  it  is  usually  a  question  for  the  court  whether  or  not 

^'  In  Seaboard  Air  Line  Ry.  Co.  he  did  not  assume  the  risk.  Southern 
V.  Horton,  233  U.  S.  492;  34  Sup.  Ct.  Ry.  Co.  v.  Jacobs  (Va.)  81  S.  E.  99. 
635;  57  L.  Ed.  907,  reversing  162  So  it  has  been  held  that  a  ear  in- 
N.  C.  424;  78  S.  E.  494;  it  was  held  spector  familiar  with  the  surround- 
that  an  engineer  assumed  the  risk  ings  assumed  the  risk  of  being  caught 
in  operating  a  locomotive  having  between  parallel  tracks  situated  so 
a  water  gauge  inadequately  guarded.  close   together   that   a   person   could 

^*  This  is  also  the   reasonable  de-  not    go    between    cars    on    the    two 

duction  from  the  decision  in  the  case  tracks   in   safety.      Central   Vermont 

of  Bower  v.  Chicago  &  N.  W.  R.  Co.  Ry.  Co.  v.  Bethune,   206  Fed.  868. 

96  Neb.  419;  148  N.  W.  145,  where  See  also  Farley  v.  New  York,  N.  H. 

the  servant  was  injured  by  the  burst-  &   H.    R.   Co.    (Conn.)    91   Atl.   650. 

ing    of    a    Nathan    lubricator    on    a  But  where  a  laborer  was  injured 

locomotive.  by  being  struck  in  the  eye  by  a  sliver 

So  it  has  been  held  that  an  engine  from   a   much    worn    chisel   used   to 

repairer  working  about  an  open  car  cut  railroad  ties,  it  was  held  that  he 

pit,  where  he  was  required  to  work  could  not  be  said  to  have  assumed 

in    the    course    of    his    employment,  the    risk,    even    though    he   knew    of 

assumed  the  risk  of  injury  by  falling  the  condition  and  continued  to  work 

into  it.     Glenn  v.  Cincinnati,  N.  O.  after  having   complained   of   the   in- 

&  T.  P.  Ry.  Co.  157  Ky.  453;  163  strument  to  the  foreman,  the  latter 

S.  W.  461.  having  threatened  him,  at  the  time, 

So   it   was   held   error   to    tell   the  with  discharge,   unless  he  continued 

jury    that    if    the    plaintiff    knew    of  work.    New  York,  N.  H.  &  H.  R.  R. 

the  pile  of  cinders  along  the  track  and  Co.   v.   Vizvari,   210   Fed.    118;    126 

continued  to  work  without  complaint  CCA.  632. 


212  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

the  servant  assumed  the  risk ;  and  the  usual  method  is  for 
the  court  to  charge  the  jury  upon  a  hypothetical  supposition 
of  facts  that  he  did  or  did  not  assume  the  risk.  But  there 
are  instances  where  the  question  whether  the  servant  did  or 
did  not  assume  the  risk  is  left  to  the  jury.  Such  was  the 
case  where  a  fireman  was  struck  by  a  mail  crane  located  too 
close  to  the  track,  or  whether  he  was  guilty  of  contributory 
negligence.^"  A  like  ruling  was  made  where  a  switchman 
was  jarred  from  the  tender  of  a  locomotive  on  which  he  was 
riding,*^  and  where  a  flagman  was  pushing  a  car  along  a 
track  and  was  injured  by  a  torpedo  that  had  been  laid  on 
such  track.*^ 

'^  Rowlands  v.   Chicago  &  N.  W.  *•  Southern   Ry.  Co.   v.  Howertoa 

Ry.  Co.  149  Wis.  51;   135  N.  W.  156;  (Ind.)   105  N.  E.  1025;  Erie  R.  Co. 

Knapp   V.   Great   Northern   Ry.   Co.  v.  Jacobus,  221  Fed.  335. 

(Minn.)    153   N.   W.   848;   Tonsellito  If  the  facts  be  undisputed,  usually 

V.  New  York  Cent.  &  H.  R.  R.  Co.  the  court  may  direct  the  verdict  in 

(N.  J.)  94  Atl.  804.  that  respect.     St.  Louis  &  S.  F.  R. 

"  Louisville  &  N.  R.  Co.  v.  Lank-  Co.    v.    Snowden    (Okla.)    149   Pac. 

ford,  209  Fed.  321:  126  C.  C.  A.  247.  1083. 


CHAPTER  VII. 
DEATH  BY  WRONGFUL  ACT. 


SECTION 

132.  Statute. 

133.  Beneficiary    or    widow    cannot 

maintain  action. 

134.  Question   raised  that  adminis- 

trator must  sue. 

135.  Judgment  under  state  statute 

or  at  common  law  as  a  bar 
to  action  under  Federal 
statute. 

136.  Substituting   administrator  for 

beneficiary  in  action  brought 
by  latter — Statute  of  limi- 
tations. 


SECTION 

137.  Action  by  foreign  personal 
representative. 

No  action  at  common  law. 

Constitutionality  of  statute  al- 
lowing recovery  for  bene- 
ficiaries. 

Deceased  without  right  of  re- 
covery. 

Failure  of  deceased  to  bring 
action. 

Instantaneous  death. 

Survival  of  injured  employee's 
cause  of  action. 


138. 
139. 


140. 

141. 

142. 
143. 


§  132.  Statute. — The  statute  provides  that  a  common  car- 
rier by  railroad  while  engaging  in  certain  commerce,  "shall 
be  liable  in  damages  to  any  person  suffering  injury  while  he 
is  employed  in  such  commerce,  or,  in  case  of  the  death  of 
such  employe,  to  his  or  her  personal  representative,  for  the 
benefit  of  the  surviving  widow  or  husband  and  children  of 
such  employe;  and,  if  none,  then  of  such  employe's  parents; 
and,  if  none,  then  of  the  next  of  kin  dependent  upon  such 
employe,  for  such  injury  or  death  resulting  in  whole  or  in 
part  from  the  negligence  of  any  of  the  officers,  agents,  or 
employes  of  such  carriers,"  etc.  Under  the  statute  only  the 
administrator  and  executor^*  can  bring  the  suit.^  The  gen- 
eral administrator  may  bring  the  action,  a  special  one  is  not 
necessary;-  and  letters  of  administration  may  issue,  though 
the  deceased  left  no  property.^* 


'*  De  Rivera  v.  Atchison,  T.  &  S. 
F.  Ry.  Co.  (Tex.  Civ.  App.);  149  S. 
W.  223. 

»St.  Louis  S.  W.  Ry.  Co.  v. 
Brothers,  (Tex.  Civ.  App.);  165  S. 
W.  488;  Cleveland,  etc.,  R.  Co.  v. 
Osborn,  36  Ind.  App.  34;  73  N.  E. 
Rep.  285;  Dillier  v.  Cleveland,  etc., 
R.  Co.  34  Ind.  App.  52;  72  N.  E. 
Rep.  271;  Lake  Erie,  etc.,  R.  Co.  v. 
Charmer,  161  Ind.  95;  67  N.  E.  Rep. 
623;  Cleveland,  etc.,  R.  Co.  v.  Os- 


good, 36  Ind.  App.  34;  73  N.  E.  Rep. 
285. 

-  Lake  Erie,  etc.,  R.  Co.  v.  Char- 
mer, stipra;  Cleveland,  ete.,  R.  Co. 
v.  Osgood,  svjyra. 

2*  Gulf  C.  &  S.  F.  Ry.  Co.  v. 
Beezley  (Tex.  Civ.  App.)  153  S.  W. 
651;  Eastern  Ry.  Co.  v.  Ellis  (Tex. 
Civ.  App.)  153  S.  W.  701;  De  Rivera 
v.  Atchison,  T.  &  S.  F.  Ry.  Co. 
(Tex.  Civ.  App.)  149  S.  W.  223. 

213 


214 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


§  133.     Beneficiary  or  widow  cannot  maintain  action. — 

Those  who  will  be  entitled  to  the  proceeds  recoverable  be- 
cause of  the  death  of  an  employee  of  the  carrier,  cannot 
maintain  an  action  to  recover  damages  because  of  his  death. 
At  common  law  no  action  for  a  death  could  be  maintained ; 
and  when  Congress  provided  that  one  could  be  maintained 
and  provided  who  should  bring  it,  they  gave  it  upon  the 
condition  that  only  the  person  designated  to  bring  it  could 
maintain  the  action.  This  excluded  all  others.*'  This  is  true 
as  to  the  sole  beneficiary,'^  as  a  parent.^  Nor  can  the  widow 
of  the  deceased,  as  such,  maintain  the  action,  even  though 
the  deceased  left  no  children.^  Not  only  can  the  widow  not 
sue  under  the  Federal  Statute,  but  she  cannot  sue  under  a 
state  statute  giving  her  a  right  of  action.^" 

§  134.     How  question  raised  that  administrator  must  sue. 

— The  right  of  the  beneficiary  to  maintain  the  action  can 


6  American  R.  Co.  v.  Birch,  224 
U.  S.  547;  32  Sup.  Ct.  603;  56  L.  Ed. 
879. 

'  Penny  v.  New  Orleans  Great 
Northern  R.  Co.  135  La.  962;  66 
So.  313. 

8  American  R.  Co.  v.  Birch, 
supra;  Flanders  v.  Georgia,  S.  &  F. 
Ry.  Co.  (Fla.)  67  So.  68;  St.  Louis, 
S.  F.  &  T.  R.  Co.  V.  Scale,  229  U.  S. 
156;  33  Sup.  Ct.  651;  57  L.  Ed.  1129, 
reversing  Tex.  Civ.  App.  148  S.  W. 
1099. 

«  Hearst  v.  St.  Louis,  L  ]\L  &  S. 
Ry.  Co.  (Mo.  App.)  173  S.  W.  86; 
LaCasse  v.  New  Orleans,  T.  &  M. 
R.  Co.  135  La.  129;  64  So.  1012; 
Vaughan  v.  St.  Louis  &  S.  F.  R.  Co. 
177  Mo.  App.  155;  164  S.  W.  144; 
Dungan  v.  St.  Louis  &  S.  F.  R.  Co. 
(Mo.  App.)  165  S.  W.  1116;  IMissouri, 
K.  &  T.  Ry.  Co.  v.  Lenham.  39  Okla. 
283;  135  Pac.  383;  Mi.ssouri,  K.  &  T. 
R.  Co.  V  Wulf,  57  U.  S.  355;  33  Sup 
Ct.  135;  57  L.  Ed.  274,  affirming  192 
Fed.  919;  113  C.  C.  A.  665;  Troxcll 
V.  Delaware,  L.  &  W.  R.  Co.  227  U. 
S.  434;  33  Sup.  Ct.  274;  57  L.  Ed.  274, 
afTirniing  2(K)  Fed.  44;  118  C.  C.  A. 
272;  Delaware,   L.  &  W.   R.  Co.   v. 


Troxell,  183  Fed.  373;  105  C.  C.  A. 
593;  Rich  v.  St.  Louis  &  S.  F.  Ry.  Co. 
166  Mo.  App.  379;  148  S.  W.  1011; 
Thompson  v.  Wabash  Ry.  Co.  184 
Fed.  554;  Fithian  v.  St.  Louis  &  S. 
F.  Ry.  Co.  188  Fed.  842;  St.  Louis, 
S.  F.  &  T.  R.  Co.  v.  Seale,  229  U.  S. 
156;  33  Sup.  Ct.  651;  57  L.  Ed.  1129; 
Eastern  Ry.  Co.  v.  Ellis  (Tex.  Civ. 
App.)  153  S.  W.  701;  Kansas  City, 
M.  &  0.  Ry.  Co.  V.  Pope  (Tex.  Civ. 
App.)  152  S.  W.  185;  Gulf,  C.  &  S. 
F.  Ry.  Co.  V.  Lester  (Tex.  Civ.  App.) 
149  S.  W.  841;  Gulf  C.  &  S.  F.  Ry. 
Co.  V.  Beezley  (Tex.  Civ.  App.)  153 
S.  W.  651;  Kansas  City,  M.  &  O.  Ry. 
Co.  V.  Pope  (Tex.  Civ.  App.)  153 
S.  W.  163;  Penny  v.  New  Orleans  G. 
N.  R.  Co.  135  La.  962;  66  So.  313; 
Cincinnati,  N.  O.  &  T.  P.  R.  Co.  v. 
Bonhani   (Teun.)   171  S.  W.  79. 

On  Thornbro  v.  Kansas  City,  M. 
&  O.  Ry.  Co.  91  Kas.  684;  139  Pac. 
410,  a  widow,  as  such,  was  apparently 
allowed  to  recover  damages. 

The  words  "if  none"  in  the  statute 
refers  to  "surviving  widow  or  husband 
and  children  of  such  employee,"  and 
not  to  personal  representatives.  Fith- 
ian V.  St.  Louis  &  S.  F.  Ry.  Co.  188 
Fed.  842. 

'»  LaCasse  v.  New  Orleans,  T.  &  M. 
R.  Co.  135  La.  129;  64  So.  1012. 


DEATH   BY   WRONGFUL  ACT.  215 

be  raised  at  any  stage  of  the  trial. ^^  Thus  in  the  case  just 
cited,  as  soon  as  it  appeared  that  the  employee  was  injured 
while  engaged  in  interstate  commerce,  objection  was  at  once 
interposed  to  the  introduction  of  any  further  evidence,  be- 
cause the  action  should  have  been  brought  by  the  admin- 
istrator and  not  by  the  beneficiary,  as  had  been  done.  A 
plea  in  abatement  is  not  necessary  to  present  the  question.^^ 

§  135.  Judgment  under  state  statute  or  at  common  law 
as  a  bar  to  action  under  Federal  Statute. — Where  a  widow 
brought  an  action  under  a  state  statute  for  the  benefit  of 
herself  and  children,  and  prosecuted  it  to  a  final  judgment, 
it  was  held  no  bar  to  an  action  afterwards  brought  by  her- 
self as  administrator  of  her  deceased  husband  to  recover 
damages  for  his  death.  The  decision  was  placed  upon  the 
ground  that  the  court  was  without  authority  to  render  the 
decision. ^^  Where  the  widow  brought  an  action  under  a 
state  statute  and  recovered  a  judgment,  which  on  appeal 
was  reversed  because  she  could  not  sue  as  widow  ;^*  and 
subsequently  brought  suit  as  administrator,  it  was  held  that 
she  was  not  barred  by  the  former  action.  The  decision 
goes  further  and  holds  that  a  judgment  recovered  by  her 
in  her  individual  capacity  would  not  be  a  bar  to  a  recovery 
in  her  administrative  capacity.^^ 

§  136.  Substituting-  administrator  for  beneficiary  in  ac- 
tion brought  by  latter — State  of  limitations. — In  Missouri 
where  a  widow,  as  such,  obtained  a  judgment  for  her  and 
her  children's  benefit,  and  after  recovering  the  judgment 
was  appointed  administrator,  and  in  her  representative 
capacity  entered  an  appearance  and  requested  to  be  allowed 
to  claim  the  benefit  of  the  judgment  in  her  representative 

"  LaCasse  v.  New  Orleans,  T.  &  M.  R.  Co.  177  Mo.  App.  155;  164  S.  W. 

R.  Co.  135  La.  129;  64  So.  1012.  144. 

1=  Eastern  Ry.   Co.  v.   Ellis   (Tex.  i^  Delaware,  L.  &  W.  R.  Co.   183 

Civ.  App.)  153  S.  W.  701;  Vaughan  Fed.  373;  105  C.  C.  A.  593. 

V.  St.  Louis  &  S.  F.  R.  Co.  177  Mo.  '^  Troxell  v.  Delaware,  L.  &  W.  R. 

App.  155;  164  S.  W.  144.  Co.  227  U.  S.  434;  33  Sup.  Ct.  274; 

"Vaughan  v.  St.   Louis  &   S.   F.  57   L.   Ed.   274,   reversing  200   Fed. 

44,  118  C.  C.  A.  272. 


216-  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

capacity,  it  was  held  that  the  court  had  no  power  to  permit 
her  to  enter  such  an  appearance  and  adopt  the  judgment ; 
for  the  defendant  was  entitled  to  an  opportunity  to  con- 
trovert before  a  jury  the  fact  of  her  appointment  as  an  ad- 
ministrator; but  it  could  have  permitted  her  to  enter  an 
appearance,  grant  a  new  trial,  and  then  permit  her  to  prose- 
cute the  action  anew.^*^  And  in  another  case  in  the  same 
state  and  in  the  same  court,  it  was  held  that  such  procedure 
was  unwarranted.^'  But  where  the  action  w^as  brought  in 
a  Federal  Court  by  the  widow,  and  pending  the  action  she 
petitioned  the  court  to  permit  her  as  administrator  to  prose- 
cute the  case  in  her  personal  capacity,  it  was  held  that  un- 
der the  Federal  Statute^*  the  court  in  its  discretion  could 
allow  it,  even  though  more  than  two  years  had  elapsed 
since  the  death  of  the  employee.  The  action  as  first  brought 
purported  to  be  founded  upon  the  Kansas  statute ;  but  the 
facts  pleaded  showed  that  the  employee  when  injured  was 
engaged  in  interstate  commerce  for  an  interstate  railroad, 
although  no  reference  was  made  to  the  Federal  Statute ;  and 
the  Supreme  Court  not  only  held  that  the  substitution  was 
proper,  but  also  that  the  Statute  of  Limitations  had  not 
become  a  bar.  The  court  did  not  consider  that  the  substi- 
tution was  the  equivalent  of  a  new  action,  so  as  to  render  it 
subject  to  the  two  years'  limitation.  "The  charge  was  in 
form  rather  than  in  substance.  It  introduced  no  new  or 
different  cause  of  action,  nor  did  it  set  up  any  different 
state  of  facts  as  the  ground  of  action,  and  therefore  it 
related  back  to  the  bringing  of  the  suit.  "^® 

^'  Vaughan  v.  St.  Louis  &  S.  F.  R.  In  a  case  of  a  non-suit,  it  was  held 

Co.  177  Mo.  App.  155;  164  S.  W.  144.  that  where,  at  the  time  of  the  dis- 

"  Dungan  v.  St.  Louis  &  S.  F.  R.  missal  of  action  to  enforce  a  common- 
Co.  (Mo.  App.)  165  S.  W.  1116.  law  liability  for  the  death  of  a  rail- 

*' U.   S.   Rev.   Stat.    §  954;  U.   S.  way    employee,    it    was    within    the 

Comp.  Stat.  1901,  p.  696.  discretion  of  the  court  to  dismiss  the 

"Missouri,   K.   &   T.   Ry.   Co.   v.  entire  action  without  prejudice,  and 

Wulf,  226  V.  S.  570;  33  Sup.  Ct.  135;  it    was    equally    within    the    court's 

57  L.  Ed.  274.  affirming  192  Fed.  919;  power  to  dismiss  without  prejudice  to 

113    C.    C.    A.    665,    distinguishing  the  commencement  of  a  new  action  to 

Union  Pac.  R.  Co.  v.  Wyler,  158  U.  S.  recover   for   decedent's   death    under 

285;  .39  L.  Ed.  983;  15  Sup.  Ct.  877;  the  Federal  Act.    Oliver  v.  Northern 

Hall   V.   Louisville,  etc.   R.   Co.    157  Pac.  Ry.  Co.  196  Fed.  432. 
Fed.  464. 


DEATH  BY  WRONGFUL  ACT. 


217 


§  137.    Action    by    foreign    personal    representative. — It 

may  be  stated  that  an  administrator  may  maintain  an  action 
in  a  state  where  he  has  not  been  appointed  to  recover  dam- 
ages occasioned  by  the  death  of  his  decedent.  The  rule  in 
this  respect  is  governed  by  the  Federal  Statute  and  not  by 
the  decisions  of  a  state  court.  Thus  an  injury  occurred  in 
Oklahoma,  and  letters  of  administration  were  there  taken 
out  and  suit  to  recover  damages  for  the  injury  was  brought 
in  Arkansas.  A  recovery  was  permitted.-"  The  same  ruling 
was  made  under  the  Federal  Liability  Act  of  June  11,  1906, 
although  the  court  held  this  act  unconstitutional.^^ 

§  138.  No  action  at  common  law. — The  maxim  actio  per- 
sonalis moritur  cum  persona  applied  to  actions  at  common 
law  for  the  death  of  a  person ;  and  this  is  true  whether  the 
death  was  instantaneous  or  not  as  a  result  of  the  injury.^ 
Therefore,  if  a  right  to  recover  exists,  it  must  be  given  by  a 


20  Midland  Valley   R.   Co.   v.   Le- 
Moyne,  104  Ark.  327;  148  S.  W.  654. 

^'  Brooks    V.    Southern    Pac.    Co. 
148  Fed.  986. 

^  Michigan  Central  R.  Co.  v.  Vree- 
land,  227  U.  S.  59;  33  Sup.  Ct.  192; 
57  L.  Ed.  417;  St.  Louis,  etc.,  R.  Co. 
V.  Hesterly,  228  U.  S.  702;  33  Sup. 
Ct.  703;  57  L.  Ed.  1031;  American  Ry. 
Co.   V.   Didricksen,   227   U.   S.    145; 
33   Sup.    Ct.   224;   57   L.    Ed.    4.56; 
St.  Louis,  etc.,  R.  Co.  v.  Seale,  229 
U.  S.  156;  33  Sup.  Ct.  1129;  57  L. 
Ed.  651;  Fulgham  v.  Midland  Valley 
R.  Co.  167  Fed.  660;  Walsh  v.  New 
York,  N.  H.  &  H.  R.  Co.  173  Fed 
494;  Melzner  v.  Northern  Pac.  Ry 
Co.   46  Mont.    162;   127   Pac.   1002 
Cain  V.  Southern  R.  Co.  199  Fed.  211 
Higgins     V.     Yelverton,     Yelv.     89 
Baker    v.    Bolton,    1    Campb.    493 
Osborn  v.  Gillett,  L.  R.  8  Exch.  88 
42  L.  J.  Exch.  53;  28  L.  T.  (N.  S.) 
197;  21  W.  R.  409;  Carey  v.  Berk- 
shire R.  Co.   1  Cush.  475;  Eclen  v. 
Lexington,  etc.,  R.  Co.  14  B.  Mon. 
165;  Hyatt  v.  Adams,  16  Mich.  180; 


Grosso  V.  Delaware,  etc.,  R.  Co.  50 
N.  J.  L.  317;  13  Atl.  Rep.  233;  Lyons 
V.  Woodward,  49  Me.  29;  Wyatt  v. 
Williams,  43  N.  H.  102;  Kramer  v. 
Market    St.    Ry.    Co.    25   Cal.    434; 
Little  Rock,  etc.  Ry.  Co.  v.  Barker, 
33  Ark.  350;   Edgar  v.   Costello,   14 
S.   C.   20;   Natchez,   etc.,   R.   Co.   v. 
Cook,     63     Miss.     38;     Scheffler    v. 
Minneapolis,  etc.,   R.   Co.  32  Minn. 
125;  19  N.  W.  Rep.  656;  Sherman  v. 
Johnson,  58  Vt.  40;  2  Atl.  Rep.  707; 
Thomas   v.   Union   Pac.    Ry.   Co.    1 
Utah,    132;   Sullivan   v.   Union   Pac. 
Ry.  Co.  2  Fed.  Rep.  447;  1  McCrary, 
301;  Whitford  v.  Panama  R.  Co.  23 
N.  Y.  465;  Hubgh  v.  New  Orleans, 
etc.,  R.  Co.  6  La.  Ann.  495;  Herman 
V.  New  Orleans,  etc.,  R.  Co.  11  La 
Ann.  5;  Connecticut,  etc.,  Co.  v.  New 
York,    etc.,    R.    Co.    25   Conn.    265 
Insurance  Co.   v.   Brame,   95   U.   S 
754;  24  L.  Ed.  580;  The  Harrisburg 
119  U.  S.  199;  7  Sup.  Ct.  Rep.  140 
30  L.  Ed.  358,  reversing  15  Fed.  Rep 
610;   In   re   La  Burgogne,    117   Fed 
Rep.  261;  St.  Louis,  I.  M.  &  So.  Ry 
Co.  V.  Crafts  (U.  S.)  35  Sup.  Ct.  704 


218  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

statute.*    A  statute  giving  a  right  of  action  in  force  at  the 
place  of  the  injury  applies  to  a  suit  in  admiralty.^ 

§  139.  Constitutionality  of  statute  allowing  recovery  for 
beneficiaries. — It  is  no  longer  an  open  question  that  a  stat- 
ute allowing  a  recovery  for  the  benefit  of  those  dependent 
upon  the  deceased  is  constitutional.  The  validity  of  such  a 
statute  has  been  firmly  established.--  This  is  true  although 
the  statute  only  applies  to  railroad  companies.^^  Once  the 
cause  of  action  has  accrued  in  favor  of  a  beneficiary,  a  sub- 
sequent statute  cannot  change  the  beneficiary,-*  or  repeal 
the  right  to  the  action.-^ 

§  140.  Deceased  without  right  to  recover. — The  bene- 
ficiaries only  receive  their  right  to  recover  damages  through 
the  right  of  the  deceased  to  recover  damages  if  he  had 
brought  the  suit.  If  he  could  not  successfully  maintain  an 
action  for  his  injuries,  his  administrator  cannot  maintain 
one  successfully  for  their  benefit.-''     The  right  of  action  is 


*  Louisville,  etc.,  R.  Co.  v.  Jones,  -^Chicago,  etc.,  R.  Co.  v.  Pounds, 

45  Fla.  407;  34  So.  Rep.  246;  Peers  v.  11  Lea.  (Tenn.)  130. 

Nevada,    etc.,    Co.    119    Fed.    Rep.  ^^  Denver,   etc.,   R.   Co.  v.  Wood- 

400;  Fithian  v.  St.  Louis  &  S.  F.  Ry.  ward,  4  Colo.  162;  Lundin  v.  Kansas 

Co.  188  Fed.  842;  Duke  v.  St.  Louis  Pac.  Ry.  Co.  4  Colo.  433. 

&  S.  F.  Ry.  Co.  172  Fed.  684;  Dillon  =«  Thomas    v.    Chicago    &    N.    W. 

V.  Great  Northern  Ry.  Co.  38  Mont.  Ry.   Co.   202   Fed.   7G6;   Evansville, 

485;  100  Pac.  960;  St.  Louis.  I.  M.  etc.,  R.  Co.  v.  Lowdermilk,  15  Ind. 

&  So.  Ry.  Co.  V.  Crafts  (U.  S.)  35  120;   Ohio,   etc.,   R.   Co.   v.   Tindall, 

Sun.  Ct.  704.  13  Ind.  366;  Hecht  v.  Ohio,  etc.,  R. 

^Lindstron   v.   International,   etc.,  Co.  132  Ind.  507;  32  N.  E.  Rep.  302; 

Co.  117  Fed.  Rep.   170;  The  North-  Louisville,  etc.,  R.  Co.  v.  Thompson, 

ern  Queen,  117  Fed.  Rep.  906.  107  Ind.  442;  8  N.  E.  Rep.  18;  9  N.  E. 

"  Boston,  etc.,  R.  Co.  v.  State,  32  Rep.  357;  Pittsburg,  etc.,  R.  Co.  v. 

N.  H.  215;  Louisville,  etc.,  R.  Co.  v.  Hosea,  152  Ind.  412;  53  N.  E.  Rep. 

Louisville,  etc.,  Co.   (Ky.)   17  S.  W.  419;  Kaufman  v.  Cleveland,  etc.,  R. 

Rep.  567;  Carroll  v.  Missouri  Pac.  Ry.  Co.  144  Ind.  456;  43  N.  E.  Rep.  446; 

Co.  88  Mo.  239;  Sherlock  v.  Ailing,  Pennsylvania,  etc.,  R.  Co.  v.  Meyers, 

93  U.  S.  99;  23  L.  Ed.  819,  affirming  1.36   Ind.    242;    36   N.    E.    Rep.    32; 

44  Ind.   184;  Southwestern,  etc.,   R.  Madison,   etc.,   R.   Co.   v.   Bacon,   6 

Co.  v.  Pauik,  24  Ga.  536;  Bond  v.  Ind.  205;  Neilson  v.  Brown,  13  R.  I. 

Seerace,  2  Duv.  576.    So  the  Federal  651;  Martin  v.  Wallace,  40  Ga.  52; 

statute    is    valid.      Zikos    v.    Oregon  Wallace  v.  Connor,  38  Ga.  199;  Pym 

R.  &  N.  Co.  179  Fed.  893.  v.  Great,  etc.,  Ry.  Co.  2  B.  &  S.  759. 

"  Boston,    etc.,    R.    Co.    v.    State, 
tiupru. 


DEATH   BY  WRONGFUL,  ACT.  219 

grounded   upon   the   original   wrongful   injury   of   the    de- 
ceased.-^ 

§  141.  Failure  of  deceased  to  bring-  action. — The  failure 
of  the  deceased  to  bring  suit  for  his  injuries,  though  he  had 
ample  time  to  do  so,  is  no  defense.-^ 

§  142.  Instantaneous  death. — The  statute  expressly  pro- 
vides for  an  action  in  favor  of  the  beneficiaries  in  case  of 
death  of  the  injured  persons ;  and  this  applies  to  an  instan- 
taneous death,-*^ 

§  143.  Survival  of  injured  employee's  cause  of  action. — 
Before  the  amendment  of  1910  the  cause  of  action  given  the 
injured  employee  did  not  survive  his  death,  but  died  with 
him.^°  Consequently  if  the  injured  person  died  after  bring- 
ing suit  to  recover  damages  for  his  injuries,  his  personal 
representative  could  not  be  substituted  and  prosecute  the 
suit  for  the  benefit  of  the  heirs  or  widow  of  the  deceased  f^ 
but  he  must  bring  a  new  action  for  that  purpose.  But 
Congress  remedied  this  defect  by  adding  section  nine 
of  the  act  so  as  to  read  as  follows:     "That  any  right  of 

"Michigan    Central    R.     Co.     v.  R.  Co.  71  Iowa,  490;  32  N.  W.  Rep. 

Vreeland,  227  U.  S.  59;  33  Sup.  Ct.  465;  Worden  v.  Humeston,  etc.,  etc., 

192;   57   L.   Ed.   417,   reversing   189  R.  Co.  72  Iowa,  201;  33  N.  W.  Rep. 

Fed.  495.  629;  Nashville,  etc.,  R.  Co.  v.  Prince, 

=8  Malott  V.  Shimer,  153  Ind.  35;  2   Heisk.    (Tenn.)    580;    Fowleker  v. 

54  N.  E.  Rep.  101.  Nash,  5  Baxt.  (Tenn.)  663;  Haley  v. 

^  Michigan  Central  R.  Co.  v.  Vree-  Mobile,  etc.,  R.  Co.  7  Baxt.  (Tenn.) 

land,  227  U.  S.  59;  33  Sup.  Ct.  192;  239;    Kansas   City,    etc.,    R.   Co.   v. 

57  L.  Ed.  417,  reversing  189  Fed.  495.  Daugherty,  88  Tenn.  721;  13  S.  W. 

In  this  case  it  was  said:   "There  is  no  Rep.  698;  Van  Amburg  v.  Vicksburg, 

express  or  implied  limitation  of  the  etc.,  R.  Co.  37  La.  Ann.  651;  Hamil- 

liability  to  cases  in  which  the  death  ton  v.  Morgan,  etc.,  R.  Co.  42  La. 

is  instantaneous."  Ann.  824;  8  So.  Rep.  586. 

On  this  point  the  case  of  Carolina,  C.  '"Walsh  v.   New  York,   N.   H.  & 

6  O.  Ry.  v.  Shewalter,  128  Tenn.  363;  H.  R.  R.  Co.  173  Fed.  494;  Fulgham  v. 
161  S.  W.  1136  is  not  sound.  Brown  Midland  Valley  R.  Co.  167  Fed.  660; 
V.  Buffalo,  etc.,  R.  Co.  22  N.  Y.  191;  Michigan  Central  R.  Co.  v.  Vree- 
Reed  v.  Northeastern  R.  Co.  37  S.  C.  land,  supra;  Cain  v.  Southern  Ry. 
42;  16  S.  E.  Rep.  289;  Roach  v.  Im-  Co.  199  Fed.  210. 

perial  Mining  Co.  7  Fed.  Rep.  698;  ^'  Walsh  v.   New  York,   N.   H.   & 

7  Sawy.  224;  International,  etc.,  R.  H.  R.  Co.  173  Fed.  494;  Farley  v. 
Co.  v.  Kindred,  57  Tex.  491;  Murphy  New  York,  N.  H.  &  H.  R.  R.  Co. 
v.  New  York,  etc.,  R.  Co.  30  Conn.  87  Conn.  328;  87  Atl.  999. 

184;    Conners    v.    Burlington,    etc., 


220 


FEDERAL   EMPLOYERS'   LIABILITY  ACT. 


action  given  by  this  act  to  a  person  suffering  injury  shall 
survive  to  his  or  her  personal  representatives,  for  the 
benefit  of  the  surviving  widow  and  children  of  such  em- 
ployee, and,  if  none,  then  of  such  employee 's  parents,  and,  if 
none,  then  of  the  next  of  kin  dependent  upon  such  employee, 
but  in  such  cases  there  shall  be  only  one  recovery  for  the 
same  injury.  "^^  Quite  recently  the  Supreme  Court  has  very 
carefully  considered  the  effect  of  the  addition  of  section 
nine,  above  quoted,  and  after  saying  that  section  one  of  the 
Act  had  not  been  changed^^  the  court  used  this  language 
concerning  the  statute:  "It  continues,  as  before,  to  provide 
for  two  distinct  rights  of  action ;  one  in  the  injured  person 
for  his  personal  loss  and  suffering  where  the  injuries  are  not 
immediately  fatal,  and  the  other  in  his  personal  representa- 
tive for  the  pecuniary  loss  sustained  by  designated  relatives 


3=Cain  V.  Southern  Ry.  Co.  199 
Fed.  211;  Thomas  v.  Chicago  &  N. 
W.  Ry.  Co.  202  Fed.  766.  "We  are  of 
the  opinion  that  the  plain  meaning  of 
these  statutory  provisions  is  that, 
where  one  receives  an  injury  in  the 
employment  of  a  railroad  company 
under  such  circumstances  as  entitles 
him  or  her,  as  the  case  may  be,  by 
virtue  of  the  statute,  to  recover  from 
the  company  damages  therefor,  and 
that  such  injury  results  in  the  death 
of  the  injured  person,  damage  result- 
ing from  the  personal  suffering,  and 
from  such  death,  not  only  may  be 
recovered  by  the  personal  repre- 
sentative of  the  deceased  in  one 
action,  but  must  be  recovered  in  one 
action  only,  if  at  all,  for  the  benefit 
of  those  specified  in  the  statute." 
Northern  Pac.  Ry.  Co.  v.  Maerkl, 
198  Fed.  1;  117  C.  C.  A.  237;  Norfolk 
&  W.  Ry.  Co.  V.  Holbrook  (T'.  S.) 
35  Sup.  Ct.  143,  reversing  215  Fed. 
687. 

Only  one  recovery  is  allowed.     St. 


Louis  &  S.  F.  R.  Co.  v.  Conarty, 
106  Ark.  421;  155  S.W.  93. 

"Under  Employer's  Liability  Act, 
where  death  is  instantaneous,  the 
beneficiary  can  recover  their  pecuni- 
ary loss  and  nothing  more;  but  the 
relationship  between  them  and  the 
deceased  is  a  proper  circumstance  for 
consideration  in  computing  the  same." 
Norfolk  &  W.  Ry.  Co.  v.  Holbrook 
(U.  S.)  35  Sup.  Ct.  143,  reversing  215 
Fed.  687.  The  court  was  not  in  this 
case  considering  the  amending  section 
nine. 

If  the  employee  lives  an  appreciable 
length  of  time  after  his  injury,  his 
course  of  action  survives  even  though 
unconscious.  Capital  Trust  Co.  v. 
Great  Northern  Ry.  Co.  (Minn.)  149 
N.  W.  14.  See  Dillon  v.  Great 
Northern  Ry.  Co.  38  Mont.  485;  100 
Pac.  9()0. 

=3'Tayior  v.  Taylor,  232  U.  S.  363, 
570;  .34  Sup.  Ct.  350;  58  L.  Ed.  638, 
641;  6  N.  C.  C.  A.  436. 


DEATH   BY    WRONGFUL    ACT.  220a 

where  the  injuries  immediately  or  ultimately  result  in  death, 
"Without  abrogating  or  curtailing  either  right,  the  new  sec- 
tion provides  in  exact  words  that  the  right  given  to  the 
injured  person  'shall  survive'  to  his  personal  representative 
'for  the  benefit  of  the  same  relatives  in  whose  behalf  the 
other  right  is  given.  Brought  into  that  by  way  of  amend- 
ment, this  provision  expresses  the  deliberate  will  of  Congress. 
Its  terms  are  direct,  evidently  carefully  chosen,  and  should 
be  given  effect  accordingly.  It  does  not  mean  that  the  in- 
jured person's  right  shall  survive  to  his  personal  representa- 
tive and  yet  be  unenforceable  by  the  latter,  or  that  the  sur- 
vival shall  be  for  the  benefit  of  the  designated  relatives,  and 
yet  be  of  no  avail  to  them.  On  the  contrary,  it  means  that 
the  right  existing  in  the  injured  person  at  his  death — a 
right  covering  his  loss  and  suffering  while  he  lives,  but 
taking  no  account  of  his  premature  death  or  of  what  he 
would  have  earned  or  accomplished  in  the  natural  plan  of 
life — shall  survive  to  his  personal  representative  to  the  end 
that  it  may  be  enforced  and  the  proceeds  paid  to  the  rela- 
tives indicated.  And  when  this  provision  and  section  one 
are  read  together  the  conclusion  is  unavoidable  that  the  per- 
sonal representative  is  to  recover  on  behalf  of  the  designated 
beneficiaries,  not  only  such  damages  as  will  compensate  them 
for  their  own  pecuniary  loss,  but  also  such  damages  as  will 
be  reasonably  compensatory  for  the  loss  and  suffering  of  the 
injured  person  while  he  lived.  "^*  Where  the  deceased  sur- 
vived his  injury  only  two  hours  a  recovery  by  the  adminis- 
trator because  of  his  pain  and  suffering  for  the  benefit  of 
his  widow  and  child  was  allowed,  and  this  result  was  ap- 
proved by  the  United  States  Supreme  Court.^^    The  admin- 

^*  St.  Louis,  I.  M.  &  So.  Ry.  Co.  v.  's  Kansas  City  So.  Ry.  Co.  v.  Leslie, 

Crafts,  237  U.  S.  — ;  35  Sup.  Ct.  704,  35  Sup.  Ct.  844,  reversing  112  Ark. 
affirming  (Ark.)  171  S.  W.  1185.  305;  1G7  S.  W.  83,  but  on  the  ground 


220b  FEDERAL    EMPLOYERS'    LIABILITY   ACT. 

istrator  in  such  a  case  recovers  not  only  the  damages  the 
deceased  would  have  recovered  for  his  pain  and  suffering, 
but  also  for  the  pecuniary  loss  the  beneficiaries  have  sus- 
tained; and  the  latter  cannot  be  reduced  by  the  amount  of 
the  former.  Both  damages  may  be  recovered  in  one  action, 
although  there  are  two  causes  of  action,  perhaps  in  separate 
paragraphs  of  complaint,^^  although  there  is  no  reason  why 
they  may  not  be  recovered  in  a  single  paragraph.  The  jury 
need  not  specify  in  their  verdict  the  amount  of  each  dam- 
age, unless  a  rule  of  local  practice  requires  it;  but  they 
may  award  a  lump  sum.^^ 


that  the  instructions  as  to  the  pe-  ''  Kansas  City  So.  Ry.  Co.  v.  Leslie, 

cuniary  damages  was  erroneous.  35  Sup.  Ct.  844,  reversing  112  Ark. 

56  Louisville  &  N.  R.  Co.  v.  Fleming  305;  167  S.  W.  83. 
(Ala.)  69  So.  125. 


CHAPTER  VIII. 
BENEFICIARIES. 


144.  Statute.  153.  Emancipated  child. 

145.  Order    in    which    beneficiaries  154.  Adopted  child. 

entitled   to   receive   benefits.  155.  Posthumous  child. 

146.  No  beneficiary  in  e.xistence  or  156.  Beneficiaries  must  survive  de- 

designated  by  the  statute.  ceased— Complaint. 

147.  Separation     of    deceased    em-  157.  Existence    of    a    beneficiary    a 

ployee    and    his   wife— Steps  jurisdictional  fact, 

toward  securing  a  divorce.  158.  Statute  of  Limitations. 

148.  No    husband    or    widow    sur-  159.  Who  brings  the  action  in  case 

viving.  of  death. 

149.  Next    of     kin     dependent     of  160.  Judgment    recovered    by    de- 

employee,  ceased. 

150.  Next    of    kin    determined    by  161.  Costs. 

state  statute.  162.  Suit  by  poor  person. 

151.  Who  are  dependents.  163.  Death  of  beneficiary. 

152.  Bastard.  164.  Declaration  of  deceased. 

§  144.  Statute. — In  case  of  the  death  of  the  injured  em- 
ployee the  statute  provides  that  the  action  may  be  brought 
"for  the  benefit  of  the  surviving  widow  or  husband  and 
children  of  such  employee ;  and  if  none,  then  of  such  em- 
ployee's  parents,  and  if  none,  then  to  the  next  of  kin  de- 
pendent upon  such  employee."^ 

§  145.  Order  in  which  beneficiaries  entitled  to  receive 
benefits. — In  case  of  the  death  of  the  injured  employee  his 
personal  representative  brings  the  action  for  the  benefit  of 
those  surviving  him,  and  they  are  entitled  to  the  proceeds 
of  any  judgment  recovered  in  the  following  order,  viz. : 

First. — The  surviving  widow  or  husband  and  children  of 
the  employee. 

Second. — If  there  be  no  widow,  husband  or  children,  then 
for  the  benefit  of  the  employee's  parents. 

*  Section  1  of  statute. 

221 


222  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

Third. — If  there  be  no  beneficiaries  under  the  first  and 
second  classes,  then  for  the  benefit  of  the  next  of  kin 
dependent  upon  such  employee. 

If  there  be  persons  of  the  first  class,  then  all  the  persons 
of  the  second  and  third  classes  are  excluded ;-  if  there  be 
none  of  the  first,  but  those  of  the  second  class,  all  those 
of  the  third  class  are  excluded,^  and  it  is  only  where  there 
are  none  of  the  first  and  second  classes  that  those  of  the 
third  class  can  be  considered  as  beneficiaries.* 

§  146.  No  beneficiary  in  existence  or  designated  by  the 
statute. — If  the  deceased  employee  left  surviving  him  no 
widow,  no  children,  no  parents  and  no  next  of  kin  depend- 
ent upon  him,  then  no  recovery  can  be  had  by  the  personal 
representative.  "No  right  of  action  is  given  for  the  benefit 
of  relatives  other  than  those  specified."^  A  beneficiary 
designated  by  a  state  statute  who  is  not  one  named  by  the 
Federal  Act  cannot  be  used  to  maintain  the  action.  And 
this  is  because  the  Federal  Act  gives  the  only  cause  of 
action,  in  ease  of  the  death  of  an  interstate  employee,  that 
can  be  maintained.  It  excludes  all  remedies  at  common  law 
or  under  a  state  statute.^     But  a  father  may  maintain  an 

action  under  the  statute  for  loss  of  services  of  his  infant 
child  where  such  child  survives  his  injury.^* 


2  St.  Louis,  S.  F.  &  T.  R.  Co.  v  *  Thomas  v.  Chicago  &  N.  W.  Ry. 

Seale  229  U.  S.  156;  33  Sup.  Ct.  651;  Co.  202  Fed.  766;  Jones  v.  Charleston 

57  L  Ed.  1129;  St.  Louis,  etc.,  R.  Co.  &  W.  C.  R.  Co.  98  S.  C.  197;  82  S.  E. 

V.  Geer  (Tex.  Civ.  App.)  149  S.  W.  415. 

1178.  *  Second  Employer's  Liability  Cases 

'St.  Louis,  etc.,  R.  Co.  v.  Geer  223  U.  S.  1;  32  Sup.  Ct.  169;  56  L.  Ed. 

(Tex.   Civ.   App.)    149   S.   W.    1178;  327;  Bradbury  v.   Chicago,   etc.,   R. 

Moffett   V.   Baltimore  &  O.   R.   Co.  Co.  149  Iowa  51;  128  N.  W.  1;  Rich 

220  Fed.  39.  v.   St.   Louis,   etc.,   R.   Co.   166  Mo. 

*St.   Louis,   etc.,   R.   Co.   v.   Geer  App.  379;  148  S.  W.   1011;  Melzner 

(Tex.   Civ.   App.)    149   S.   W.    1178;  v.  Northern  Pac.  R.  Co.  46  Mont.  277; 

Collins  v.  Pennsylvania  Ry.  Co.  148  127  Pac.  1002;  St.  Louis,  etc.,  R.  Co. 

N.  Y.  Supp.  777.  V.  Hesterly,  228  U.  S.  702;  33  Sup.  Ct. 

"Two  of  the  plaintiffs,  the  father  703;  57  L.  Ed.  1031;  Illinois  Central 

and  mother,  in  whose  favor  there  was  R.  Co.  v.  Doherty,  153  Ky.  363;  155 

a   separate    recovery,    are    not   even  S.    W.    1119;    American    R.    Co.    v. 

beneficiaries  under  theFederal  statute,  Didricksen,   227  U.  S.    145;  33  Sup. 

there  being  a  surviving  widow;  and  Ct.  224;  57  L.  Ed.  456;  Gulf  Ry.  Co. 

she  was  not  entitled  to  recover  in  her  v.  McGinnis,  228  U.  S.  173;  33  Sup. 

own    name,    but    only    through    the  Ct.    426;    57    L.    Ed.    785,    reversing 

deceased's     personal     representation,  (Tex.    Civ.    App.)    147   S.   W.    1188; 

a.s    is    shown    by    the    terms    of    the  Chesapeake  &  O.  Ry.  Co.  v.  Dwyer, 

statute     and     the     decisions     before  157  Ky.  590;  163  S.  W.  752. 

cited."     St.    Louis,   etc.,    R.   Co.    v.  «•  Tonsellito  v.  New  York  Cent.  & 

Seale,  supra.  H.  R.  R.  Co.  (N.  J.)  94  Atl.  804. 


BENEFICIARIES.  223 

§  147.  Separation  of  deceased  employee  and  his  wife — 
Steps  toward  securing  a  divorce. — The  fact  that  the  de- 
ceased was  not  living  with  his  wife  at  the  time  of  his  death 
is  no  defense  to  the  action  nor  to  the  recovery  of  damages 
for  her  support;'^  even  though  the  wife  had  taken  steps  to 
secure  a  divorce.^    The  marriage  engagement  of  the  widow 

can  not  be  shown.^* 

§  148.  No  husband  or  widow  surviving. — It  will  be  noted 
that  the  statute  provides  in  the  first  class  that  the  suit  shall 
be  brought  "for  the  benefit  of  the  surviving  widow  or  hus- 
band and  children  of  such  employee,"  and  the  question  nat- 
urally arises,  "Suppose,  where  the  deceased  employee  is  a 
husband  and  father  and  no  widow  survives  him,  can  the  suit 
be  maintained  for  the  benefit  of  his  children  alone?  Must 
there  be  a  surviving  widow  in  such  an  instance,  in  order  to 
authorize  the  bringing  of  the  suit?"  These  questions  have 
been  answered  by  some  of  the  state  courts  in  construing 
similar  statutes,  and  held  that  though  there  be  no  widow  sur- 
viving the  deceased,  but  children  survive,  the  action  can  be 
maintained.® 

§  149.  Next  of  kin  dependent  upon  employee. — If  there  be 
no  widow  or  husband  and  children  or  parent  of  the  deceased 
employee,  then  "the  next  of  kin  dependent  upon"  him  are 
entitled  to  the  proceeds  of  the  action,  these  falling  in  the 
third  group  of  beneficiaries.  But  the  fact  that  the  next  of 
kin  are  non-resident  aliens  does  not  defeat  the  action."  Par- 


^  Dunbar  v.  Charleston  &  W.  C.  Moore,    15  N.  Y.   432;   OldBeld   v. 

Ry.  Co.  186  Fed.  175  (a  humorous  New  York,  etc.,  R.  Co.  14  N.  Y.  310; 

decision).    Fogarty  v.  Northern  Pac.  Tilley  v.  Hudson  R.  Co.  24  N.  Y.  471. 

R.  Co.  (Wash.)  147  Pac.  652.  "  Rietveld  v.  Wabash  R.  Co.  129 

8  Abel  V.  Northampton,  etc.,  Co.  la.  249;  105  N.  W.  Rep.  515;  Pitts- 

212  Pa.  St.  329;  61  Atl.  915.  burg,  etc.,  R.  Co.  v.  Naylor,  73  Ohio 

8*  Jones  V.  Kansas  City  So.  Ry.  Co.  St.  115;  76  N.  E.  Rep.  505;  Baltimore, 

(La.)  68  So.  401.     Damages  may  be  etc.,  R.  Co.  v.  Baldwin,  144  Fed.  Rep. 

recovered  for  a  minor  son  of  deceased  53;  Alfson  v.  Bush  Co.   182  N.  Y. 

by  a  divorced  wife.     McGarvey  v.  393;  75  N.  E.   Rep.  230;  Atchison, 

McGarvey,  163  Ky.  242;  173  S.  W.  etc.,  R.  Co.  v.  Fajardo,  74  Kan.  314; 

765.  86  Pac.  Rep.  301 ;  Tanor  v.  Municipal, 

'City  of  Chicago  v.  Major,  18  111.  etc.,  Co.  84  N.  Y.   Stat.   1053;  88 

349;    Haggerty    v.    Central    R.    Co.  App.  Div.  251;  Naylor  v.  Pittsburg, 

31  N.  J.  L.  349;  McMahon  v.  City  etc.,  R.  Co.  4  Ohio  C.  C.  (N.  S.)  437 
of  New  York,  33  N.  Y.  642;  Quin  v. 


224  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

tial  dependency  is  sufficient  to  authorize  the  maintenance 
of  the  suit."  And  in  the  case  of  a  widow,  husband,  child  or 
parent  the  question  of  dependency  is  involved.^^  To  recover 
damages  for  the  beneficiaries  they  must  have  been  actually 
dependent  upon  him  for  their  support,  either  wholly  or 
partially,  during  his  lifetime ;  and  the  mere  fact  that  he  may 
have  occasionall}"  given  them  some  of  his  wages  is  not 
enough.  Thus  where  the  employee  was  hardly  sufficient  for 
his  own  support,  it  was  ruled  that  his  next  of  kin  could  not 
recover.^^  Thus  w^here  an  unmarried  man  of  20  w^as  killed, 
leaving  only  a  brother  and  sister,  to  whose  support  he  had 
never  contributed,  it  was  held  that  there  could  be  no  re- 
covery.^* And  the  same  ruling  was  made  where  the  child 
was  a  married  woman. ^^  But  in  order  to  maintain  the  ac- 
tion there  need  not  be  shown  a  legal  liability  to  support  the 
next  of  kin  for  whose  benefit  damages  are  sought.'^*'  The 
dependency  for  support  is  an  issue  in  the  case  and  must  be 
proven.^'  In  an  action  to  recover  damages  for  the  benefit 
of  a  young  brother  and  sister  of  the  deceased  the  court 
accepted  as  sufficient  very  slight  evidence  of  their  support, 
saying:  "The  evidence  as  to  the  tender  ages  of  the  chil- 
dren and  being  without  estate  was  sufficient  evidence  to  be 


{contra,  Cleveland,   etc.,   R.   Co.   v.  163  App.  Div.  452;  148  N.  Y.  Supp. 

Osgood,  36  Ind.  App.  3-1;    70  N.  E.  777. 

Rep.    839)     Hirschkovitz    v.    Penn-  ^*  Jones  v.  Charleston  &  W.  C.  Ry. 

sylvania  R.  Co.  138  Fed.  Rep.  438.  Co.  98  S.  C.  197;  82  S.  E.  415;  Gulf 

Contra,    ]McGovern     v.    Philadelphia  C.  &  S.  F.  R.  Co.  v.  McGinnis,  228 

&  R.  Ry.  Co.  209  Fed.  975.  U.  S.  173;  33  Sup.  Ct.  426;  57  L.  Ed. 

"Savannah   El.   Co.   v.   Bell,    124  785,  reversing  (Tex.  Civ.  App.)   147 

Ga.   663;   53   S.   E.    109;   Louisville,  S.  W.  1188.     Contra,  if   he  had  con- 

etc.,  R.  Co.  v.  Jones,  50  Fla.  225,  39  tributed.     Richelieu  v.  Union  P.  R. 

So.  Rep.  485.  Co.  (Neb.)  149  N.  W.  772;  Southern 

'2  Gulf,  C.  &  S.  F.  R.  Co.  v.  Mc-  Ry.  Co.  v.  Vessell  (Ala.)  68  So.  336. 

Ginnis,  228  U.  S.  173;  33  Sup.  Ct.  426;  '^  Gulf,  C.  &  S.  F.  R.  Co.  v.  Mc- 

57  L.  Ed.  192,  reversing  147  S.  W.  Ginnis,   supra;  Southern   Ry.   Co.   v. 

1118;   Michigan   Central   R.   Co.    v.  Vessell  (Ala.)  68  So.  336. 

Vreeland,  227  U.  S.  59;  33  Sup.  Ct.  '^  Michigan     Central     R.     Co.    v. 

192;  57  L.  Ed.  420;  American  R.  Co.  Vreeland,  227  U.  S.  59;  33  Sup.  Ct. 

V.  Didricksen,  227  U.  S.  145;  33  Sup.  192;  57  L.  Ed.  192;  189  Fed.  495; 

Ct.   224;   .57    L.    Ed.    224;    Melzner  Rains  v.  Southern  Ry.  Co.  (N.  C.) 

v.  Northern  Pac.   R.  Co.  46  Mont.  85   S.   E.   294. 

102;  127  Pac.  1002,  is  not  the  law.  "  Jones  v.  Charleston  &  W.  C.  Ry. 

"Collins  v.  Penn.sylvania  R.  Co.  Co.  98 S.  C.  77;  82  S.  E.  415. 


BENEFICIARIES.  225 

submitted  to  the  jury  on  the  question  of  their  being  de- 
pendent."^ 

§  150.  Next  of  kin  determined  by  state  statute. — In  de- 
termining who  are  "next  of  kin"  the  state  statute  in  force 
where  the  death  occurs-  controls,  and  not  the  common  law. 
It  necessarily  follows  who  are  next  of  kin  may  vary  in 
different  states.  "The  contention  that  the  next  of  kin  must 
be  the  same  in  all  the  states  is  not  in  accordance  with  the 
intent  of  the  act.  Indeed,  there  could  be  no  uniformity,  if 
that  was  desirable,  for  there  is  no  common  law  in  Louisiana, 
and  the  common  law  is  much  modified  in  some  of  the  states 
which  we  acquired  from  Mexico  and  France,  and  on  many 
subjects  the  rule  of  the  common  law  has  been  held  differ- 
ently in  the  different  states."  "The  object  of  the  act  of 
Congress  was  to  permit  a  recovery  for  wrongful  death  or 
injuries  on  interstate  railroads,  and  that  the  recovery  should 
go  to  the  next  of  kin  in  the  cases  specified ;  the  next  of  kin 
being  determined  by  the  law  of  the  state  in  which  the  action 
is  brought,  for  the  status  of  the  citizen,  and  the  statute  regu- 
lating descent  and  distribution  is  purely  a  state  matter  with 
which  Congress  has  no  concern.  By  the  reasoning  in  the 
case  above  cited^  the  words  'next  of  kin'  are  taken,  like  the 
words  'heirs,'  as  meaning  those  to  whom  the  property  would 
go,  but  who  are  the  heirs  and  who  are  the  next  of  kin  is  a 
matter  purely  of  state  regulation,"* 

'  Kenney  v.  Seaboard  Air  Line  R. 
Co.  165  N.  C.  99;  S2  S.  E.  968;  Rains 

V.  Southern  Ry.  Co.  (N.  C.)  85  S.  E.  Caldwell,  152  U.  S.  65;  14  Sup.  Ct. 

294.  504;  38  L.  Ed.  356. 

"And  the  fact  has  been  found  by  *  Kenney  v.  Seaboard  Air  Line  R. 

the    jury,    who    evidently   gave   due  Co.  165  N.  C.  99;  82  S.  E.  968. 
weight  to  the  evidence  of  the  earning  Consult  United  States  v.  Fox,  94 

capacity  of  intestate  as  may  be  in-  U.  S.  315;  24  L.  Ed.  192;  Cutting  v. 

ferred    from    the    smallness    of    the  Cutting.  6  Fed.  268;  Moen  v.  Moen, 

verdict."  Ibid.  16  S.  D.  214;  92  N.  W.  13,  and  McCool 

2  Not  where  the  injury  is  inflicted.  v.  Smith,   1   Black.   459;   17   L.   Ed. 

^  Hutchinson    Investment    Co.    v.  218. 


226  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

§  151.  Who  are  dependent  on  deceased. — In  the  previous 
section  it  is  said  that  a  partial  dependency  on  the  deceased 
was  all  that  was  necessary.  Who  is  dependent  is,  of  course, 
a  question  of  fact.  An  invalid  sister  who  has  received  each 
month  thirty  or  thirty-five  dollars,  is  unable  to  pay  her  doctor 
bills  or  to  work,  and  is,  in  fact,  dependent  upon  her  deceased 
brother,  comes  within  the  statute.^^  An  indigent  mother  living 
with  her  unmarried  son  and  depending  upon  him  for  support, 
is  dependent  upon  him  within  the  meaning  of  a  statute  simi- 
lar to  the  one  under  discussion.^®  Where  an  aged  father  lived 
in  a  foreign  country,  was  feeble,  destitute,  unable  to  work, 
and  the  deceased  had  many  times  sent  him  money,  it  was 
held  that  he  was  dependent  on  the  deceased  son.^''  But  where 
it  appeared  that  the  alleged  beneficiary  was  a  half  sister 
with  two  children,  that  the  deceased  came  to  see  her  at  times 
and  then  usually  gave  her  money,  and  sent  her  money  every 
other  week  or  so  for  her  rent,  and  she  had  no  other  means 
of  support,  and  since  his  death  had  supported  herself,  it 
was  held  that  she  was  not  dependent  upon  him,  there  being 
nothing  to  show  the  amount  of  her  earnings  or  that  she 
was,  in  fact,  dependent  upon  him.^^  The  question  of  de- 
pendency does  not  depend  upon  a  strict  legal  right  to  it, 
as  where  a  person  because  of  some  disability,  and  without 
property,  was  dependent  on  the  deceased  for  support,  and 
because  of  past  support  he  had  reasonable  expectancy  of  the 
continuation  if  the  deceased  had  lived.--     And  the  fact  that 


"  Daly   V.    New   Jersey,    etc.,    R.  ^^  Hodnett  v.  Boston,  etc.,  R.  Co. 

Co.  155  Mass.  1;  29  N.  E.  Rep.  507.  156  Mass.  86;  30  N.  E.  Rep.  224. 

"  Bowerman  v.  Lackawanna,  etc.,  "^  Louisville,  etc.,  R.  Co.  v.  Jones, 

Co.  98  Mo.  App.  308;  71  S.  W.  Rep.  45  Fla.  407;  34  So.  Rep.  246;  United 

1062.  States,  etc.,  Co.  v.  Sullivan,  22  App. 

-«  Boyle  V.  Columbia,  etc.,  Co.  182  Dec.  115. 
Mass.  93;  64  N.  E.  Rep.  726. 


BENEFICIARIES.  227 

the  deceased  had  paid  attentions  to  a  young  lady  with  a  view 
to  marriage  does  not  even  tend  to  show  his  parents  were  not 
dependent  on  him  for  support.-^  Where  two  brothers  and  a 
nephew,  with  whom  deceased  lived  and  did  housework  they 
were  held  entitled  to  recover,  though  there  was  no  legal 
obligation  on  her  part  to  support  them.-*  The  fact  that 
the  beneficiary  is  a  married  woman  will  not  defeat  her  right 
of  action  where  she  does  not  live  with  her  husband,  is  not 
supported  by  him  but  was,  in  fact,  dependent  on  the  de- 
ceased.^^  And  the  fact  that  the  beneficiary  is  supported  by 
others  after  the  death  of  the  deceased  does  not  prevent  a 
recovery.-*^  The  fact  of  dependency  must  be  established  by 
the  plaintiff  -^  for  there  can  be  no  recovery  unless  that  be 
shown.^® 

§  152.  Bastard. — A  suit  for  the  benefit  of  a  bastard  where 
its  reputed  father  has  been  killed  cannot  be  maintained;  for 
he  is  not  of  "kin"  to  the  reputed  father.^^  And  it  has  been 
held  that  the  mother  of  an  illegitimate  child  cannot  recover 
for  its  death,^°  though  it  is  believed  that  this  is  an  incorrect 
decision,  and  the  contrary  has  been  held.^^ 

"  Futz  V.  Western  U.  T.  Co.  25  R.   Co.   v.  Vreeland,   227  U.  S.  59, 

"Utah,  263;  71  Pac.  Rep.  209.  33  Sup.  Ct.  192;  57  L.  Ed.  417. 

"*  Smith  V.  Michigan,  etc.,  R.  Co.  ="  Cincinnati,  N.  O.  &  T.  P.  Ry. 

35  Ind.  App.  188;  73  N.  E.  Rep.  928.  Co.    v.    Wilson,    157    Ky.    460;    163 

-'  International,    etc.,    R.    Co.    v.  S.  W.  493;  Kenney  v.  Seaboard  Air 

Boykin,   32   Tex.   Civ.   App.   72;   85  Line    R.    Co.    166    N.    C.    566;    82 

S.  W.  Rep.  1163.    The  abandonment  S.   E.  968;   McDonald  v.   Pittsburg, 

goes     to     mitigation     of     damages.  etc.,  R.  Co.  144  Ind.  459;  43  N.  E. 

Fogarty     v.     Northern    Pacific    Ry.  Rep.  447;  Thornburgh  v.  American, 

Co.  (Wash.)  147  Pac.  652.  etc.,  Co.  141  Ind.  443;  40  N.  E.  Rep. 

2^  McDaniels    v.    Royle,    etc.,    Co.  1062;  Dickinson  v.  Northeastern  R. 

110  Mo.  App.  706;  85  S.  W.  Rep.  679.  Co.  2  H.  &  C.  735;  33  L.  J.  Exch.  91; 

"Willis,  etc.,  Co.  v.  Grizzell,  198  9  L.  T.   (N.  S.)  299;  12  W.  R.  52; 

111.  313;  65  N.  E.  Rep.  74;  Missouri,  Good  v.  Towns,  56  Vt.  410. 
etc.,  R.  Co.  V.  Freeman  (Tex.  Civ.  2°  Harkins  v.  Philadelphia,  15  Phila. 

App.)  73  S.  W.  Rep.  542.  286.    See  Marshall  v.  Wabash  R.  Co. 

28  Swift  &  Co.  v.  Johnson,  138  Fed.  46    Fed.     Rep.     269;     Robinson    v. 

Rep.  867;   Diller  v.  Cleveland,  etc.,  Georgia  R.,  etc.,   Co.   117  Ga.   168; 

R.  Co.  34  Ind.  App.  52;  72  N.  E.  43  S.  E.  Rep.  452;  Runt  v.  Illinois, 

Rep.  271.  etc.,  R.  Co.  88  Miss.  575;  41  So.  Rep. 

"There  must  appear  some  reason-  1;  McDonald  v.  Southern  R.  Co.  71 

able  expectation  of  pecuniary  assist-  S.  C.  352;  51  S.  E.  Rep.  138. 
ance  or  support  of  which  they  have  "  Muhl    v.    Southern   M.    R.    Co. 

been   deprived."      Michigan   Central  10  Ohio  St.  272. 


228  FEDERAL   EMPLOYERS'    LIABILITY    ACT, 

§  153.  Emancipated  child. — The  fact  that  the  child  of 
the  deceased  father  has  been  emancipated  is  no  defense.^^ 
Nor  is  it  a  bar  to  the  action  that  the  child  was  not  living 
with  the  father  at  his  death,-^^  or  its  custody  awarded  to  the 
divorced  wife.^* 

§  154.  Adopted  child.- — It  has  been  held  that  an  adopting 
father  could  sue  for  the  death  of  his  adopted  child,^^  and  it 
would  seem  that  suit  could  he  brought  for  the  death  of  the 
adopting  father  where  such  adopted  child  was  the  sole  bene- 
ficiary. Yet  it  has  been  held  that  such  a  child  is  not  "next 
of  kin.  "^^  But  a  child  that  had  been  merely  given  to  the 
deceased  cannot  be  treated  as  a  beneficiary,  not  being  of 
kin.37 

§  155.  Posthumous  child. — The  action  may  be  brought 
for  the  benefit  of  a  child  en  ventre  sa  mere  at  the  time  of  its 
father's  death. ^^    Such  a  child  is  a  "surviving  child. "^^ 

§  156.    Beneficiaries  must  survive  deceased — Complaint. — 

If  there  be  no  person  alive  designated  as  a  beneficiary  by  the 
statute,  then  no  action  can  be  maintained.    The  survival  of 

3-]\rattock  V.  Williamsville,  etc.,  "' State   v.    Soale.   30   Ind.    App. 

R.  Co.  (Mo.)  95  S.  W.  Rep.  849.  73;    74  N.   E.   Rep.    1111    (sale  of 

^  Gulla   V.   Lehigh,   etc.,   Co.    28  intoxicating  liquors  to  the  father, 

Pa.  Super.  Ct.   11.  resulting   in   his    death)  :    Quinlen 

^•Taylor    v.    San    Antonio,    etc.,  v.  Welcli.  09  Hun,  584;   23  N.  Y. 

Co.    15^    Tex.    Civ.    App.    344;     93  Supp.    903;     Thelluson    v.    Wood- 

S.  W.  Rep.   074.  ford,  4  Ves.  227;    11  Ves.   112. 

^  Tliornburgh  v.  American,   etc.,  ^  Nelson  v.   Galveston,   etc.,  Ry. 

Co.    141    Ind.    ■443:    40   N.   E.   Rep.  Co.    78    Tex.    G21;    14    S.    W.    Rep. 

1062.  1021;   Texas,  etc.,  Ry.  Co.  v.  Rob- 
s''He]  dca  nip  V.  .forsey  City,  etc.,  ertsou,  82  Tex.  657;  "l7  S.  W.  Rep. 

R.   Co.   09   N.   .1.    1..   284;    55   Atl.  1041;   The  George  and  Richard,  L. 

j^pp    239  P^-     Ad.     &    Ecc.     486;     24    L.     T. 

"Elvvood  St.   Rv    Co.  V.  Cooper.  (N-  S.)   717;  20  Weekly  Rep.  245; 

22   Tnd.  App.   459*;   53  N.  E.    Rep.  Galveston   etc.    R.  Co^v.  Contreras 

ir>no     1-1         1  c-t    r.      n  r?^J         31    Tex.   Civ.  App.   489;    73   S.   W. 

1092:   Elwood  St.  Rv.  Co.  v.  Ross,  it  ' 

20   Tn.l.    Ai.p.   258;    58  N.   E.   Rep.       ^"'^P'    ^"^^■ 

535. 


BENEFICIARIES. 


229 


a  beneficiary  is  essential  to  the  maintenance  of  the  cause  of 
action. *°  It  is,  therefore,  essential  for  the  administrator  to 
show  that  a  person  survived  the  deceased  employe  who  was 
then  a  beneficiary;  and  ff  he  do  not,  his  complaint  or 
declaration  will  be  insufficient;^^  and  if  it  do  not  contain  an 
allegation  of  that  fact,  the  judgment  will  be  subject  to  a 
motion  to  arrest  it.^" 

§  157.     Existence  of  a  beneficiary  a  jurisdictional  fact. — 

As  the  administrator  can  only  wage  a  suit  for  the  benefit 


*''Koening  v.  City  of  Covington 
(Ky.),  17  S.  W.  Rep.  128;  Cincin- 
nati, etc.,  R.  Co.  V.  Pratt,  92  Ky. 
233;  17  S.  W.  Rep.  484;  Ken- 
tuclvv,  etc.,  R.  Co.  V.  McGinty,  12 
Ky.  L.  Rep.  482 ;  14  S.  W.  Rep.  601 ; 
Louisville,  etc.,  R.  Co.  v.  Coppage 
(Ky.),  13  S.  W.  Rep.  1086;  Ken- 
tucky, etc.,  R.  Co.  V.  Wainwriglit 
(Ky.),  13  S.  W.  Rep.  438;  Cin- 
cinnati, etc.,  R.  Co.  V.  Adam 
(Ky.),  13  S.  W.  Rep.  428;  Louis- 
ville, etc.,  R.  Co.  V.  Merriweather 
(Ky.),  12  S.  W.  Rep.  935;  Con- 
ley  V.  Cincinnati,  etc.,  R.  Co. 
(ky.)  12  S.  W.  Rep.  764;  Hen- 
ning  V.  Louisville,  etc.,  Co.  (Ky. ) 
12  S.  W.  Rep.  550;  Wiltsie  v. 
Town  of  Linden,  77  Wis.  152;  46 
N.  W.  Rep.  234;  Woodward  v. 
Chicago,  etc.,  R.  Co.  23  Wis.  400; 
Serensen  v.  Northern  Pac.  Ry.  Co. 
45  Fed.  Rep.  407;  Lilly  v.  Char- 
lotte, etc.,  R.  Co.  32  S.  C.  142; 
10  S.  E.  932;  Warren  v.  Engle- 
hart,  13  Neb.  283;  13  N.  W.  Rep. 
401 :  Conlin  v.  City  of  Charleston, 
15  Rich.  L.  201;  Burlington,  etc., 
R.  Co.  V.  Crockett,  17  Xeb.  570; 
14  K  W.  Rep.  219. 

"  Stewart  v.  Terre  Haute,  etc., 
R.  Co.  103  Ind.  44;  2  S.  E.  Rep. 
208;  Chicago,  etc.,  R.  Co.  v.  La 
Porte,  33  Ind.  App.  691;  71  K  E. 
Rep.  166;  Lamphear  v.  Bucking- 
ham, 33   Conn.  237;    Indianapolis, 


etc.,  R.  Co.  V.  Keely,  23  Ind.  133; 
Jeffersonville,  etc.,  R.  Co.  v.  Hen- 
dricks, 41  Ind.  48;  Chicago,  etc., 
R.  Co.  V.  Morris,  26  111.  400; 
Quincy  Coal  Co.  v.  Hood,  77  111. 
68;  Conant  v.  Griffin,  48  111.  410; 
Clore  V.  Mclntire,  120  Ind.  262; 
22  N.  E.  Rep.  128;  Missouri  Pac. 
Ry.  Co.  V.  Barber,  44  Kan.  612; 
24  Pac.  Rep.  969 ;  Safford  v.  Drew, 
3  Duer.  627;  Greroux  v.  Graves, 
62  Vt.  280;  19  Atl.  Rep.  987; 
Lucas  V.  New  York,  etc.,  R.  Co. 
21  Barb.  245;  Northern  Pac.  R. 
Co.  V.  Ellison,  3  Wash.  225;  28 
Pac.  Rep.  233;  Westcott  v.  Cen- 
tral Vt.  R.  Co.  01  Vt.  638;  17 
Atl.  Rep.  745;  Schwarz  v.  Judd, 
28  Minn.  371;  10  N.  W.  Rep.  208; 
East  Tennessee,  etc.,  Ry.  Co.  v. 
Lilly,  90  Tenn.  563;  18  S.  W.  Rep. 
118;  Barnum  v.  Chicago,  etc.,  R. 
Co.  30  Minn.  461;  16  N.  W.  Rep. 
364. 

^=  Stewart   v.    Terre   Haute,    103 
Ind.  44;   2  N.  E.  Rep.  208. 


230  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

of  someone  named  in  the  statute,  it  follows  that  the  exist- 
ence of  such  a  person  is  a  jurisdictional  fact,  and  must  be 
alleged  and  proven ;  and  if  it  be  not  alleged,  the  complaint 
is  demurrable  where  it  appears  that  the  action  is  one  that 
falls  within  the  provisions  of  the  Federal  Statute.  No  pre- 
sumption can  cover  over  such  an  omission  in  the  complaint 
or  declaration.  As  it  must  be  alleged,  so  it  must  be  proven.^ 
Not  only  is  the  existence  of  a  beneficiary  a  jurisdictional 
fact,  but  it  is  a  necessary  allegation  that  he  was  dependent 
on  the  deceased  for  support,  even  the  care  of  the  widow, 
child  or  parent.  Thus  where  the  beneficiary  was  a  married 
daughter,  and  the  Texas  Court  of  Appeals  held  that  the 
Federal  "Statute  expressly  authorized  the  suit  to  be  brought 
by  the  personal  representative  for  the  benefit  of  the  sur- 
viving wife  and  children  of  the  deceased,  irrespective  of 
whether  they  were  dependent  on  him,  or  had  the  right  to 
expect  pecuniary  assistance  from  him,"  the  Supreme  Court 
of  the  United  States  declared  the  construction  to  be  erron- 
eous, saying:  "In  a  series  of  cases  lately  decided  by  this 
court,  the  act  in  this  respect  has  been  construed  as  intended 
only  to  compensate  the  surviving  relative  of  such  a  deceased 
for  the  actual  pecuniary  loss  resulting  to  the  particular 
person  or  persons  for  whose  benefit  an  action  is  given.  The 
recovery  therefore  must  be  limited  to  compensating  those 
relatives  for  whose  benefit  the  administrator  sues  as  are 
shown  to  have  sustained  some  pecuniary  loss."- 

§  158.  Statute  of  Limitations. — The  action  must  be 
brought  within  two  years  after  the  death  of  the  injured 
person.^    A  state  statute  of  limitations  has  no  applicability 

iMelzner    v.    Northern    Pac.    Ry.  U.   S.   145;  33  Sup.  Ct.  224;  57  L. 

Co.    46   Mont.    102;    127    Pac.    766;  Ed.  456. 

Thomas    v.    Chicago,    etc.,    R.    Co.  ^  Partee  v.  St.  Louis,  etc.,  R.  Co. 

202  Fed.  766;  Illinois  Cent.  R.  Co.  v.  204  Fed.   970;   Goodwin  v.   Bodeau, 

Stewart,  223  Fed.  30.  etc.,   Co.   109  La.    1050;   34  So.  74; 

2  Gulf  C.  &  S.   F.   R.  Co.  V.   Mc-  County  v.  Pacific,  etc.,  Co.  68  N.  J. 

Ginnis,  228  U.  S.  713;  33  Sup.  Ct  I^-  273;  53  Atl.  380;  Staunton  Coal 

420;  57  L.  Ed.  785,   reversing  (Tex.  Co.    v.    Fischer,    119    III.    App.    284; 

Civ.  App.)  147  S.  W.  1118;  Michigan  Dare  v.   Wabash,   etc.,   R.   Co.    119 

Central  R.  Co.  v.  Vreeland,  227  IJ.  S.  HI-    App.    250;    Crape    v.    Syracuse, 

.59;  33  Sup.  Ct.  417;  .57  L.  Ed.  192;  183  N.  Y.  .395;  70  N.  E.  465;  Winfree 

American  R.  Co.  v.  Didricksen,  227  v.  Northern  Pac.  Ry.  Co.  173  Fed.  65. 


BENEFICIARIES.  231 

to  the  case  ;*  and  the  time  is  not  extended  by  the  pendency 
and  dismissal  of  a  former  action  as  allowed  by  some  codes 
in  the  ordinary  cases.'**  The  statute  re(iuiring  the  action  to 
be  brought  within  two  years  is  not,  strictly  speaking,  a  stat- 
ute of  limitations,  which  must  be  specially  pleaded,  but  is 
an  absolute  bar,  not  removable  by  any  of  the  ordinary 
exceptions  of  that  statute.*^  "This  is  not  strictly  a  statute 
of  limitations,"  said  the  Supreme  Court  of  North  Carolina. 
"It  gives  a  right  of  action  that  would  not  otherwise  exist. 
*  *  *  It  must  be  accepted  in  all  respects  as  the  statute 
gives  it.  Why  the  action  was  not  brought  within  the  time 
does  not  appear,  but  any  explanation  in  that  respect  would 
be  unavailing,  as  there  is  no  saving  clause  as  to  the  time 
within  which  the  action  must  be  begun. "''''  "The  time 
within  which  the  suit  must  be  brought,"  said  Chief  Justice 
Waite,  "operates  as  a  limitation  of  the  liability  itself  as 
created,  and  not  of  the  remedy  alone.  It  is  a  condition  at- 
tached to  the  right  to  sue  at  all."  "The  liability  and  the 
remedy  [in  admiralty]  are  created  by  the  same  statutes,  and 
the  limitations  of  the  remedy  are,  therefore,  to  be  treated  as 
limitations  of  the  right.  "''^  It  follows  from  those  statements 
that  if  the  complaint  shows  the  action  was  not  brought 
within  the  two  years,  it  is  demurrable.*^  No  exception  can 
be  alleged  to  excuse  the  delay,*'' — as  the  defendant  carrier 
had  agreed  to  employ  the  injured  servant  as  a  compensation 
for  his  injuries.^"  The  statute  provides  that  the  action  must 
be  "commenced  within  two  years  from  the  day  the  cause  of 

*  Nichols  V.  Chesapeake  &  Ohio  Ry.  ^^  Taylor   v.    Cranberry,   etc.,   Co. 

Co.  195  Fed.  913.  94  N.  C.  525;  Best  v.  Town  of  Kings- 

^*  Rodman   v.    Missouri   Pac.    Ry.  ton,  106  N.  C.  205;  10  S.  E.  Rep.  997. 

Co.  65  Kan.  645;  70  Pac.  Rep.  642;  "The  Harrisburg,   119  U.  S.  199; 

59  L.  R.  A.  704;  Cavanagh  v.  Ocean,  7  Sup.  Ct.  Rep.  199;  30  L.  Ed.  358, 

etc.,  Co.  13  N.  Y.  Supp.  540;  9  N.  reversing  15  Fed.  Rep.  610. 

Y.  Supp.  198;  11  N.  Y.  Supp.  547;  «  Eastern   Ry.   Co.  v.   Ellis   (Tex. 

12  N.  Y.  Supp.  609;  Boyd  v.  Clerk,  Civ.  App.)  153  S.  W.  701;  Hanna  v. 

8  Fed.  Rep.  849.  Jeffersonville    R.    Co.    32    Ind.    113; 

*^  Morrison   v.   Baltimore   &   Ohio  Jeffersonville,  etc.,  R.  Co.  v.  Hend- 

Ry.  Co.  40  App.  D.  C.  391;  Shannon  ricks,  41  Ind.  48;  George  v.  Chicago, 

v.  Boston  &  M.  R.  Co.  (N.  H.)  92  etc.,  R.  Co.  51  Wis.  603;  8  N.  W.  Rep. 

Atl.    167;    Hill   v.    New   Haven,    37  374. 

Vt.  501;  Landigan  v.  New  York,  etc.,  "  Hill  v.  New  Haven,  37  Vt.  501. 

R.   Co.   5  Civ.   Proc.   Rep.    (N.   Y.)  *"  Morrison   v.   Baltimore   &   Ohio 

76;  Bonnell  v.  Jowett,  24  Hun.  524.  Ry.  Co.  40  App.  D.  C.  391. 


—  232  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

action  accrued,"  and  this  excludes  a  state  statute  of  limita- 
tions.^^ Where  the  employee  is  instantly  killed,  the  cause 
of  action  accrues  at  once  and  the  statute  immediately  begins 
to  run.''-  In  some  states  it  has  been  held  that  the  statute 
does  not  begin  to  run  until  an  administrator  has  been  ap- 
pointed;^^ but  directly  the  opposite  has  also  been  held.^* 
An  amendment  of  the  complaint  may  be  made  after  the  two 
years  have  expired,  if  it  does  not  state  a  new  cause  of 
action.^^  An  important  question  is  presented  where  the  in- 
jured employee  does  not  die  because  of  his  injuries  until 
some  time  after  he  has  received  them — a  year,  for  instance. 
Must  the  action  be  brought  within  two  years  from  the  date 
of  his  injury  or  within  two  years  from  the  date  of  his  death? 
A  little  consideration  of  this  question  will  show  that  the  suit 
can  be  brought  within  two  years  after  the  death  and  that 
the  date  of  the  injury  is  immaterial  in  this  respect.  While 
the  injured  person  was  alive  he  could  have  no  administrator, 
nor  could  his  parents,  wife,  children  or  next  of  kin  depend- 
ent upon  him  bring  an  action  because  of  his  injuries ;  and 
if  he  brought  the  action  he  would  be  entitled  to  the  damages 
recovered  and  not  they.  Where  the  beneficiary  brought  the 
action  in  his  own  name  (which  he  could  not  do),  and  on 
being  appointed  administrator,  appeared  and  moved  to  be 
substituted  plaintiff  in  his  administrative  capacity,  it  was 
held  proper  to  do  so,  although  more  than  two  years  had 

*' Shannon    v.    Boston    &    M.    R.  ^^  Missouri,  etc.,   R.  Co.  v.  Wulf, 

Co.  (N.  H.)  92  Atl.  167.  226  U.  S.  570;  33  Sup.  Ct.  135;  57 

*2  Hanna   v.   Jeffersonville   R.   Co.  L.    Ed.    274    (distinguishing    Union 

32  Ind.  113.  Pac.  R.  Co.  v.  Wvler,  158  U.  S.  285; 

"Andrews   v.    Hartford,    etc.,    R.  15   Sup.    Ct.    817;    39    L.  Ed.  983); 

Co.  34  Conn.  57;  Sherman  v.  Western  Eastern  Ry.  Co.  v.  Elhs  (Tex.  Civ. 

Stage  Co.  24  Iowa,  515;  see  Louis-  App.)  153  S.  W.  701;  City  of  Brad- 

ville,  etc.,  R.  Co.  v.  Sanders,  86  Ky.  ford  v.  Downs,   126  Pa.  St.  622;  17 

259;  5  S.  W.  Rep.  563.  Atl.    Rep.    884;    Jeffersonville,    etc. 

'■•  Bixler    v.    Pennsylvania    R.    Co.  R.    Co.    v.    Hendricks,    41    Ind.    48 

201   Fed.  553   (a  decision  under  the  Kuhns   v.    Wisconsin,   etc.,    Ry.   Co 

Federal  Act);  Fowlkes  v.  Nashville,  76    Iowa    67;    40    N.    W.    Rep.    92 

etc.,  R.  Co.  5  Baxt.  663;  9  Heisk.  829;  Moody  v.  Pacific  R.  Co.  68  Mo.  470 

Bee  Bledsoe  v.  Stokes,    1   Baxt.  312.  Daley    v.    Boston,   etc.,    R.    Co.    147 

and  Flatley  v.  Memphis,  etc.,  R.  Co.  Mass.  101;  16  N.  E.  Rep.  690. 
9  Heisk.  230. 


BENEFICIARIES.  233 

expired  since  the  death  of  the  deceased.^^  It  necessarily 
follows  that  the  statute  hegins  to  run  from  the  date  of  the 
death  of  the  injured  person.  But  it  has  been  held,  upon 
elaborate  discussion,  that  the  failure  to  bring  the  action 
within  two  years  was  a  defense  that  must  be  specially 
pleaded,  and  if  no  plea  to  that  effect  be  presented,  the 
defense  is  waived.^" 

§  159.  Who  brings  the  action  in  case  of  death. — In  case 
of  the  death  of  the  injured  person  before  he  brings  an 
action,  only  his  personal  representatives  can  bring  the 
action.  Of  course,  personal  representative  means  his  ad- 
ministrator or  executor.  The  cause  of  action  is  given  by 
statute,  and  only  the  person  to  whom  it  is  given  can  bring 
the  action  to  recover  damages ;  and  the  statute  has  named 
that  personal  representative  or  that  person.  Even  though 
there  be  no  widow  or  husband  and  children  or  parents,  and 
no  personal  representative,  the  "next  of  kin"  cannot  main- 
tain the  action.^^  If  the  deceased  has  brought  suit  and 
then  dies,  only  his  personal  representatives  can  prosecute 
it  to  judgment. 

§  160.  Judgment  recovered  by  deceased. — A  judgment 
recovered  by  the  deceased  during  his  lifetime  because  of  his 
injuries  is  a  complete  bar  to  a  suit  by  his  administrator  to 
recover  for  the  beneficiaries,^''  but  the  commencement  merely 
of  an  action  is  not.'^'* 


^«  Missouri,  etc.,  R.  Co.  v.  Wulf,  ^^  Fithian  v.  St.  Louis  &  S.  F.  Ry. 

226  U.  S.  570;  33  Sup.  Ct.  135;  57  Co.     188    Fed.    842;    Thompson    v. 

L.    Ed.    274    (distinguishing    Union  Wabash     Ry.     Co.     184    Fed.     554; 

Pac.   Ry.   Co.   v.   Wyler.    158  U.   S.  American  R.  Co.  v.  Birch,  32  U.  S. 

285;  15  Sup.  Ct.  817;  39  L.  Ed.  983);  Sup.    Ct.    Rep.    603;    De  Rivera    v. 

Bixler   v.   Pennsylvania   R.   Co.   201  Atchison,  T.  &   S.  F.  Ry.  Co.  (Tex. 

Fed.  553;  Van  Doran  v.  Pennsylvania  Civ.  App.)  149  S.  W.  223. 

R.  Co.  93  Fed.  266;  35  C.  C.  A.  282;  ^e  pjecht  v.  Ohio,  etc..  R.  Co.  132 

Hall  V.   Louisville,  etc.,   R.  Co.   1.57  Ind.  507;  32  N.  E.  302;  54  Am.  & 

Fed.  464.  Eng.   R.   Cas.   75.      See   allusion   to 

^'  Burnett  v.  Atlantir  Coast  Line,  this  question  in  St.  Louis,  I.  INI.  &  So. 

(N.  C);  79  Atl.  414  (a  decision  on  the  Ry.  Co.  35  Sup.  Ct.  704,  707. 

Federal  Act).  6"=  International,    etc.,    R.    Co.    v. 

Kuehn,  70  Tex.  582;  8  S.  W.  484. 


234  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

§  161.  Costs. — The  administrator  is  not  liable  personally 
for  the  costs  of  the  suit/"  but  the  estate  he  represents  is 
liable,  if,  at  least,  solvent."' 

§  162.  Suit  by  poor  person. — An  injured  person  may 
bring  an  action  as  a  poor  person,  and  may  appeal  any 
judgment  against  him,  without  being  required  to  prepay 
fees  or  costs  or  for  the  printing  of  the  record  in  the  appel- 
late court  or  give  security  therefor,  before  or  after  bringing 
suit  or  action,  upon  making  a  showing  to  the  court  that  he 
is  unable  to  pay  the  costs  of  the  suit  or  action  of  a  writ  of 
error  or  appeal,  or  to  give  security  for  them,  and  stating 
"that  he  believes  that  he  is  entitled  to  the  redress  he  seeks 
by  such  suit  or  action  on  writ  of  error  or  appeal,  and 
setting  forth  briefly  the  nature  of  his  alleged  cause  of  action 
or  appeal."  "^* 

§  163.  Death  of  beneficiary. — If  the  beneficiary  die,  even 
after  suit  brought,  the  suit  abates.^^^  And  where  an  action 
is  brought  for  the  widow  who  is  the  sole  beneficiary  and  she 
dies,  an  action  cannot  be  thereafter  prosecuted  for  the  bene- 
fit of  the  deceased's  parent  or  next  of  kin  dependent  upon 
him."'    But  if  there  be  two  or  more  beneficiaries  standing 

"'Evans  v.  Newland,  34  Tnd.  41  Ind.  48);  Woodward  v.  Chi- 
112;  Kinney  v.  Central  R.  Co.  34    ,  cago,    etc.,    R.    Co.    23    Wis.    400 

N.  J.  L.  273;  see  Hicks  v.  Barrett,  Railroad   v.   Bean,   94   Tenn.   388 

40  Ala.  291.  29   S.   W.  Rep.   370;    Railway   Co 

"'Chicago,  etc.,  R.  Co.  v.  Harsh-  v.  Lilly,  90  Tena.  5G3;    18   S.  W 

man,   21    Ind.  App.   23;    51   N.   E.  R<^P-  243;   49  Am.  &  Eng.  R.  Cas 

Rep.  343.  495;    Chivers    v.    Rogers,    50    La 

"TaThis  statute  is  set  forth  at  ^nn.  57;   23  So.  Rep.   100;    Saun- 

length  in   the  Appendix  A.  ders  v.  Louisville,  etc.,  R.   Co.  40 

■"•Dillier    v.    Cleveland,    etc.,   R.  C  C.  A.  465;    111   Fed.  Rep.  708; 

Co.    34    Ind.    App.    52;    72    N.    E.,  Hennessey   v.    Bavarian,    etc.,    Co. 

Rep.   271    (disapproving  of  Jeffer-  145  Mo.   104;   46  S.  W.  Rep.  966. 
sonville,  etc.,  R.  Co.  v.  Hendricks,  ""Railroad  Co.  v.   Bean,  supra. 


BENEFICIARIES. 


235 


in  the  first  or  second  order  exclusively,  and  one  die,  the 
action  may  be  prosecuted  for  those  living.^-'^ 

§  164.  Declarations  of  deceased. — If  the  declarations  of 
the  deceased  formed  a  part  of  the  res  gestae,  they  are  ad- 
missible ;^-^  but  if  they  do  not  form  a  part  of  the  res  gestae 
they  are  not  admissible.^-^ 

§  164a.  Alien  beneficiary. — A  person  residing  abroad  or 
an  alien  beneficiary  is  entitled  to  the  benefit  of  the  statute, 
and  damages  for  his  benefit  may  be  recovered.^^^ 


12"  Senn  v.  Southern  Ry.  Co.  124 
Mo.  621;  28  S.  W.  Rep.  66.  If  an 
administrator  die,  his  successor  does 
not  bring  the  action.  Hodges  v. 
Webber,  65  N.  Y.  App.  Div.  170; 
72  N.  Y.  Supp.  508. 

1"  Brownell  v.  Pacific  R.  Co.  47 
Mo.  240;  Fordyce  v.  McCouts,  51 
Ark.  509;  11  S.  W.  Rep.  694;  Little 
Rock,  etc.,  R.  Co.  v.  Leverett,  48 
Ark.  333;  3  S.  W.  Rep.  50;  Rich- 
mond, etc.,  Co.  V.  Hammond,  93 
Ala.  181;  9  So.  Rep.  577;  Merkle 
V.  Bennington  Tp.  58  Mich.  156; 
24  N.  W.  Rep.  776;  McKeigue  v. 
City  of  Janesville,  68  Wis.  50;  31 
N.    W.    Rep.    298;     Galveston    v. 


Barbour,  62  Tex.  172;  Stockmann 
V.  Terre  Haute,  etc.,  R.  Co.  15  Mo. 
App.  503;  Entwhistle  v.  Feighner, 
60   Mo.   214. 

'--  Pennsylvania  R.  Co.  v.  Long, 
94  Ind.  250;  City  of  Bradford  v. 
Downs,  126  Pa.  St.  622;  17  Atl. 
Rep.  884;  Louisville,  etc.,  R.  Co. 
V.  Berry,  2  Ind.  App.  427;  28  N.  E. 
Rep.  714;  contra,  Perigo  v.  Chicago, 
etc.,  R.  Co.  55  Iowa,  326;  7  N.  W. 
Rep.  621;  Lord  v.  Pueblo,  etc.,  R. 
Co.  12  Colo.  390;   21  Pac.  Rep.  148. 

^-^  McGovern  v.  Philadelphia  & 
R.  R.  Co.  235  U.  S.  387;  34  Sup. 
Ct.  — ,  reversing  209  Fed.  975; 
—  C.  C.  A.  — ;  6  N.  C.  C.  — ;  Bom- 
bolis  v.  Minneapolis  &  St.  L.  R.  Co. 
(Minn.)  150  N.  W.  385. 


CHAPTER  IX. 

DAMAGES. 


105.     Caution  to  be  observed  in  con-  174.     Use  of  annuity  tables. 

struing    statute    before    and  175.     Interest. 

after    amendment    of    1910.  176.     Damages  not  part  of  estate. 

165a.  Federal  statute  controls  meas-  177.     Amount  of  damages — Illustra- 

ure    of    damages.  tions. 

166.  Employee  recovers  actual  but  178.     Contributory     negligence — Re- 

not   punitive   damages.  ducing  the  amount  of  recov- 

167.  Fatal  injury  before  the  amend-  ery. 

ment  of  1910 — Two  distinct  178a.  Instructions    on     contributory 
liabilities.  negligence — Reducing     dam- 

168.  Pecuniary  damages  only  given  ages  otherwise  recoverable. 

to  beneficiary.  179.     Apportionment      of      damages 

169.  Pecuniary    loss    defined.  among  the  beneficiaries. 

170.  Rule  for  measurement  of  dam-  180.     Distributing  proceeds  of  judg- 

age  differs   according  to   re-  ment. 

lation    of    beneficiaries.  181.     Survival  of  cause  of  action. 

171.  Damage  by  way  of    solatium.  182.     Damages     recoverable     where 

172.  Minor  child's  damages.  there    is    a   survival    of   de- 

173.  Measure  of  damages.  ceased's  right  of  action. 

§  165.  Caution  to  be  observed  in  construing  statute  be- 
fore and  after  amendment  of  1910. — Care  must  be  observed 
in  examining  the  cases  and  in  the  construction  of  the  Federal 
Act  to  note  the  distinction  introduced  by  the  amendment  of 
1910,  or  where  the  death  of  the  employee  is  instantaneous, 
resulting  in  his  cause  of  action  not  surviving  or  passing  to 
his  personal  representative.^ 

§  165a.     Federal  statute  controls  measure  of  damages. — 

The  Federal  statute  controls  the  measure  of  dauiiiges  when 
it  provides  a  different  rule  from  that  of  the  common  law 

'Carolina,   C.   Sz   O.    Rv.   v.   She-  Kearney    v.    Boston    &    W.    R.    Co. 

waiter    (Tenn.)     161     S.     W.     11.36;  9   Cush.    108;    Hollenbeck   v.    Berk- 

The  Corsair,  145  TI.  S.  .3.35;  12  Sup.  shire  R.  Co.  9  Cusli.  478;  Hansford  v. 

Ct.  949;  .36  L.  Ed.  727  (10  minutes  Payne,  11  Bush,  380.    See  the  recent 

survival,    no    damages    recoverable);  case  of  St.  Louis,  I.  IVI.  &  So.  Ry.  Co. 

236  V.  Craft,  35  Sup.  Ct.  704,  705. 


DAMAGKS.  237 

(prohably  not  that  of  a  state  statute).-  Thus  a  state  statute 
cannot  limit  the  amount  of  the  recovery,^ 

§  166.  Employee  recovers  actual  but  not  punitive  dam- 
ages.— When  the  contributory  negligence  of  the  employee 
is  not  involved,  he  recovers  the  actual  damages  he  has  suf- 
fered by  his  injury,  which  the  Supreme  Court  has  declared 
to  be  such  damages  as  will  "compensate  him  for  his  ex- 
pense, loss  of  time,  suffering,  and  diminished  earning 
power."*  He  cannot  recover  punitive  damages;  for  they 
are  recoverable  only  in  case  of  a  wanton  injury ;  and  the 
statute  covers  only  negligent  injuries.  So  far  as  the  em- 
ployee is  concerned  it  is  not  necessary  to  pursue  the  ques- 
tion further ;  for  the  statute  does  not  change  the  general 
rule  upon  the  amount  of  damages  recoverable  for  an  in- 
jury,^ except  where  contributory  negligence  is  involved. 

§  167.     Fatal  injury  before   the   amendment   of  1910. — 

Speaking  of  the  statute  as  it  was  prior  to  the  amendment 
of  1910  providing  for  a  survival  of  the  deceased  employee's 
right  of  action,  Justice  Lurton  said:  "We  think  the  act 
declares  two  distinct  and  independent  liabilities,  resting,  of 
course,  upon  the  common  foundation  of  a  wrongful  injury, 
but  based  upon  altogether  different  principles.  It  plainly 
declares  the  liability  of  the  carrier  to  its  injured  servant. 
If  he  had  survived  he  might  have  recovered  such  damages 

"^  Louisville  &  N.  R.  Co.  v.  Stewart,  *  Michigan  Central  R.  Co.  v.  Vree- 

156  Ky.  550;  161  S.  W.  557;  163  S.  land,  227  U.  S.  59;  33  Sup.  Ct.  192; 

W.  755;  Chesapeake  &  Ohio  Ry.  Co.  57  L.  Ed.  417,  reversing  189  Fed.  495; 

V.  Dwyer,   157  Ky.  590;   163  S.  W.  Bennett    v.    Southern    Ry.    Co.    98 

752.  S.  C.  319;  79  S.  E.  710;  Nashville, 

2  Devine  v.  Chicago,  R.  I.  &  P.Ry.  C.  &  St.  L.  R.  Co.  158  Ky.  88;  164 

Co.  265  111.  641;  107  N.  E.  595.  S.  W.  310;  Nashville,  C.  &  St.  L.  R. 

The   Federal   Supreme   Court   has  Co.  v.  Banks,  156  Ky.  609;  161  S.  W. 

declared  that  the  object  of  the  statute  554;  Jones  v.  Kansas  City  So.  Ry. 

was   "to   abrogate  the   common   law  Co.  (La.)  68  So.  401;  Southern  Ry.  Co. 

rule  completely  exonerating  the  car-  v.   Peters   (Ala.)   69  So.   610.     It  is 

rier  from  liability  in  such  a  case,  and  error  to  leave  to  the  jury  the  matter  of 

substitute  a  new  rule  confining  the  limiting  the  damages  without  naming 

exoneration  to  a  proportionate  part  any  standard  to  which  their  action 

of  the  damage  corresponding  to  the  shall  conform  other  than  their  own 

amount    of    negligence    attributable  conception    of   what   is    recoverable, 

to   the   employee."      Norfolk   &   W.  Seaboard  Air  L.  R.  Co.  v.  Tilghman, 

Ry.  Co.  v.  Ernest,  229  U.  S.  114;  33  35  Sup.  Ct.  704,  reversing  167  N.  C. 

Sup.  Ct.  654;  57  L.  Ed.  651;  Illinois  163;  83  S.  E.  315,  1090. 

Central  R.  Co.  v.  Porter,  207  Fed.  '  The  statute  fixes  no  limit  on  the 

311;  125  C.  C.  A.  55.  damages   recoverable.      Thornbro   v. 

Kansas  City,  M.  &  O.  Ry.  Co.  91 
Kan.  684;  139  Pac.  410. 


238  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

as  would  have  compensated  him  for  his  expense,  loss  of 
time,  suffering,  and  diminished  earning  power.  But  if  he 
does  not  live  to  recover  upon  his  own  cause  of  action,  what 
then?  Does  any  right  of  action  survive  his  death  and  pass 
to  his  representative?  This  is  a  question  which  depends 
upon  the  statute."  And  after  declaring  that  this  act  of 
Congress  cannot  be  pieced  out  by  resorting  to  the  local 
statutes  of  the  state  of  procedure  or  that  of  the  injury,  and 
that  the  cause  of  action  the  injured  employee  had  did  not 
survive  his  death  and  vest  in  his  personal  representative, 
but  died  with  him,  Justice  Lurton  declares:  "The  obvious 
purpose  of  Congress  was  to  save  a  right  of  action  to  certain 
relatives  dependent  upon  an  employee  wrongfully  injured, 
for  the  loss  and  damage  resulting  to  them  financially  by 
reason  of  the  wrongful  death.  *  *  *  This  cause  of  ac- 
tion is  independent  of  any  cause  of  action  which  the  de- 
cedent had,  and  includes  no  damages  which  he  might  have 
recovered  for  his  injury  if  he  had  survived.  It  is  one  be- 
yond that  which  the  decedent  had — one  proceeding  upon 
altogether  different  principles.  It  is  a  liability  for  the  loss 
and  damages  sustained  by  relatives  dependent  upon  the 
decedent.  It  is  therefore  a  liability  for  the  pecuniary  dam- 
ages resulting  to  them,  and  for  that  only.  The  statute,  in 
giving  an  action  for  the  benefit  of  certain  members  of  the 
family  of  the  decedent,  is  essentially  identical  with  the  first 
act  which  ever  provided  for  a  cause  of  action  arising  out 
of  the  death  of  a  human  being — that  of  9  and  10  Vict., 
chap.  93,  known  as  Lord  Campbell's  Act.  This  act  has  been, 
in  its  distinguishing  feature,  reenaeted  in  many  of  the  states 
and  both  in  the  courts  of  the  states  and  of  England  has  been 
construed  as  not  operating  as  a  continuance  of  any  right  of 
actions  which  the  injured  person  would  have  had  but  for 
his  death,  but  as  a  new  or  independent  cause  of  action  for 
the  purpose  of  compensating  certain  dependent  members  of 
the  family  for  the  deprivation,  pecuniarily,  resulting  to  them 
from  his  wrongful  death."  "The  distinguishing  features  of 
that  act  are  identical  with  the  act  of  Congress  of  1908  before 


DAMAGES.  239 

its  amendment:  First,  it  is  grounded  upon  the  original 
wrongful  injury  of  the  person;  second,  it  is  for  the  exclu- 
sive benefit  of  certain  specified  relatives ;  third,  the  damages 
are  such  as  flow  from  the  deprivation  of  the  pecuniary 
benefits  which  the  beneficiaries  might  have  reasonably  re- 
ceived if  the  deceased  had  not  died  from  his  injuries."^ 

§  168.    Pecuniary  damages  only  given  to  beneficiary. — In 

the  case  from  which  an  extended  quotation  has  just  been 
made,  Justice  Lurton  quotes  from  an  opinion  of  Lord  Black- 
burn where  he  was  construing  Lord  Campbell's  Act,  as  fol- 
lows: "A  totally  new  action  is  given  against  the  person 
who  would  have  been  responsible  to  the  deceased  if  the  de- 
ceased had  lived — an  action  which  *  *  *  is  new  in  its 
species,  new  in  its  quality,  new  in  its  principle,  in  every 
way  new,  and  which  can  only  be  brought  if  there  is  any 
person  answering  the  description  of  the  widow,  parent,  or 
child,  who,  under  such  circumstances,  suffers  pecuniary 
loss."^  "The  pecuniary  loss,"  says  Justice  Lurton,  "is  not 
dependent  upon  any  legal  liability  of  the  injured  person  to 
the  beneficiary.  That  is  not  the  sole  test.  There  must,  how- 
ever, appear  some  reasonable  expectation  of  pecuniary  as- 
sistance or  support  of  which  they  have  been  deprived.  Com- 
pensation for  such  loss  manifestly  does  not  include  damages 
by  way  of  recompense  for  grief  or  wounded  feelings.  The 
word  'pecuniary'  did  not  appear  in  Lord  Campbell's  Act, 
nor  does  it  appear  in  our  Act  of  1908.  But  the  former  act 
and  all  those  which  follow  it  have  been  continuously  inter- 
preted as  providing  only  for  compensation  for  pecuniary 
loss  or  damage."^     In  another  case  Justice  Lurton  again 

6  Michigan  Central  R.  Co.  v.  Vree-  C.  R.  Co.  v.  Doherty,  153  Ky.  363; 

land,  227  U.  S.  59;  33  Sup.  Ct.  192;  155  S.  W.  1119. 

57  L.  Ed.  412,  reversing  189  Fed.  495;  ^  Seward  v.  The  Vera  Cruz  L.  R., 

Bennett  v.   Southern   Ry.   98  S.   C.  10  App.  Cas.  59. 

319;  79  S.  E.  710;  Chesapeake  &  O.  '  Michigan  Central  R.  Co.  v.  Vree- 

Ry.  Co.  V.  Dwyer,  157  Ky.  590;  163  land,  227  U.  S.  59;  33  Sup.  Ct.  192; 

S.  W.  752;  Louisville  &  N.  R.  Co.  v.  57  L.  Ed.  412,  reversing  189  Fed.  495; 

Stewart,  156  Ky.  550;  161  S.  W.  557;  American  R.  Co.  v.  Didricksen,  227 

modified  157  Ky.  642;  163  S.  W.  755;  U.  S.  145;  33  Sup.  Ct.  224;  57  L.  Ed. 

Garrett  v.   Louisville   &   N.   R.   Co.  456,  reversing  5  Porto  Rico,  401,  427; 

197Fed.715;117C.C.A.  109;  Illinois  Gulf,  etc.,  R.  Co.  v.  McGinnis,  228 


240  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

said:  "The  damages  recoverable  are  limited  to  such  loss  as 
results  to  them  because  they  have  been  deprived  of  a  reason- 
able expectation  of  pecuniary  benefits  by  the  wrongful 
death  of  the  injured  employee.  The  damage  is  limited 
strictly  to  the  financial  loss  thus  sustained."^  Where  the 
parent  is  the  beneficiary  a  reasonable  expectation  of  sup- 
port is  all  that  need  be  shown ;  and  actual  dependency  on  the 
deceased  for  support  need  not  be  shown  where  the  widow 
and  children  are  the  beneficiaries.^*' 

§  169.  Pecuniary  loss  defined. — '  *  A  pecuniary  loss  or 
damage,"  said  Justice  Lurton,  "must  be  one  which  can  be 
measured  by  some  standard.  It  is  a  term  employed  judi- 
cially, 'not  only  to  express  the  character  of  that  loss  to  the 
beneficial  plaintiffs  which  is  the  foundation  of  their  right 
of  recovery,  but  also  to  discriminate  between  a  material 
loss  which  is  susceptible  of  a  pecuniary  valuation,  and  that 
inestimable  loss  of  the  society  and  companionship  of  the 
deceased  relative  upon  which,  in  the  nature  of  things,  it  is 
not  possible  to  set  a  pecuniary  valuation. '^^  Nevertheless, 
the  word  as  judicially  adopted  is  not  so  narrow  as  to  exclude 
damages  for  the  loss  of  services  of  the  husband,  wife,  or 
child,  and,  when  the  beneficiary  is  a  child,  for  the  loss  of 

U.  S.  173;  33  Sup.  Ct.  426;  57  L.  Ed.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hesterly, 

785;  3  N.  C.  C.  806,  reversing  (Tex.  228  U.  S.  702;  33  Sup.  Ct.  703;  57  L. 

Civ.  App.)  147  S.  W.  1188;  Cain  v.  Ed.  1031,  reversing  98  Ark.  240;  135 

Southern  R.  Co.  199  Fed.  211 ;  Thomas  S.  W.  874. 

V.  Chicago,  etc.,  R.  Co.  202  Fed.  768;  *  American  R.  Co.  v.   Didricksen, 

Bennett  v.  Southern  Ry.  Co.  (S.  C.)  227  U.  S.  145;  33  Sup.  Ct.  224;  57 

79  S.  E.  710;  Louisville  &  N.  R.  Co.  L.  Ed.  456,  reversing  5  Porto  Rico  401, 

V.  Johnson,  161  Ky.  824;  171  S.  W.  427;  Kansas  City  M.  &  O.  Ry.  Co. 

847;  Chesapeake  &  Ohio  Ry.  Co.  v.  v.  Roe  (Okla.)  150  Pac.  1035. 

Dwyer,  157  Ky.  590;  163  S.  W.  752;  These  quotations  must  be  read  in 

Illinois  Central  R.  Co.  v.   Doherty,  the  light  of  the  fact  that  the  amend- 

153  Ky.  363;  155  S.  W.  1119;  Chesa-  ment  of  1910  was  not  involved, 

peake  &  Ohio  Rv.  Co.  v.  Dwyer  (Ky.)  '"  Dooley  v.  Seaboard  Air  Line  R. 

172    S.    W.    918;    McCouHough    v.  Co.   163  N.  C.  454;  79  S.  E.  970; 

Chicago,    R.    I.   &   P.    Ry.   Co.    160  approved  in  Moffett  v.  Baltimore  & 

Iowa    524;    142    N.    W.    67;    North  Ohio  R.  Co.  220  Fed.  39;  Fogarty  v. 

Carolina  R.  Co.  v.  Zackary,  232  U.  Northern  Pacific  Ry.  Co.  (Wash.)  147 

S.  248;  34  Sup.  Ct.  305;  58  L.  Ed.  591,  Pac.  652;  Cain  v.  Southern  Ry.  Co. 

reversing  156  N.  C.  496;  72  S.  E.  858;  199  Fed.  211;  Raines  v.  Southern  Ry. 

IlliiioiH    Central    R.    Co.    v.    Porter,  Co.  (N.  C.)  85  N.  E.  294. 

207  Fed.  311;  125  C.  C.  A.  55;  St.  "Quoting  Patterson's  Railway  Ac- 
cident Law  §  401. 


DAMAGES. 


241 


that  care,  counsel,  training  and  education  which  it  might, 
under  the  evidence,  have  reasonably  received  from  the 
parent,  and  which  can  only  be  supplied  by  the  services  of 
another  for  compensation."  Justice  Lurton  then  quotes 
from  a  New  York  case^-  as  follows:  "The  word  'pecuniary' 
was  used  in  distinction  to  those  injuries  to  the  affections 
and  sentiments  which  arise  from  the  death  of  relatives,  and 
which,  though  most  painful  and  grievous  to  be  borne,  can- 
not be  measured  or  recompensed  by  money.  It  excludes, 
also,  those  laws  which  result  from  the  deprivation  of  the 
society  and  companionship,  which  are  equally  incapable  of 
being  defined  by  any  recognized  measure  of  value.  "^^  No 
hard  and  fast  rule,"  continues  Justice  Lurton,  "by  which 
pecuniary  damages  may  in  all  cases  be  measured  is  possible. 
In  Lett  v.  St.  Lawrence  &  0.  R.  Co.^*  it  was  said  in  the 
opinion  of  Patterson,  J.  A.,  after  a  review  of  all  the  English 
cases  construing  the  act  of  Lord  Campbell — 

'That  there  is  through  them  all  the  same  principles  of 
construction  applied  to  the  statute.  Each  full  state  of 
facts  as  it  arose  was  dealt  with,  and  furnished  a  further 
illustration  of  the  working  of  the  act.  The  party  claiming 
was  held  to  be  entitled  or  not  to  be  entitled,  the  scale  of 
compensation  acted  upon  by  the  jury  was  approved  or  dis- 
approved, in  view  of  the  immediate  circumstances;  but  in 
no  case  has  it  been  attempted  to  be  decided  by  anticipation 
what  are  the  limits  beyond  which  the  benefit  of  the  statute 
cannot  be  denied.'   "^^     It  is  clear  that  under  this  reason- 

i=Tilley  v.  Hudson  River  R.  Co.  Tiffany,    Death    by    "Wrongful   Act, 

24  N.  Y.  471,  and  29  N.  Y.  252;  86  §§  154   to    162;    Patterson,    Railway 

Am.  Dec.  297.  Ace.  Law,  §§  401  to  406." 

'^  "To  the  same  effect  are  the  cases  ^*  11  Ont.  App.  Rep.  1. 

of  Schaub  v.  Hannibal  &  St.  J.  R.  '^  Michigan  Central  R.  Co.  v.  Vree- 

Co.  106  INIo.  74;  16  S.  W.  924,  which  land,  227  U.  S.  59;  33  Sup.  Ct.  192; 

was  followed  by  che  Circuit  Court  of  57  L.  Ed.  417,  reversing  189  Fed.  495. 

Appeals    for    the    eighth    circuit    in  In  this  case  it  was  held  error  to  tell 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Wilson,  the  jury  to  consider  the  relation  be- 

48  Fed.  57;  1  C.  C.  A.  25;  4U.  S.  App.  tween  husband  and  wife,  and  draw 

25;   Lelt   v.   St.    Lawrence   &   O.    R.  upon  their  own  experiences  as  men, 

Co.    11    Ont.    App.    Rep.    1;    Penn-  and   measure,  as   far  as  they  could, 

sylvania  R.  Co.  v.  Goodman,  62  Pj,.  what  it  would  reasonably  have  been 

329;  Louisville,  N.  A.  &  C.  R.  Co.  v.  worth  to  the  wife  in  dollars  to  have 

Rush,  127  Ind.  545;  26  N.  E.  1010;  had,  during  their   Ufe   together,  had 


242 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


ing  and  the  rule  here  stated,  that  the  measure  of  damages 
is  the  amount  which  will  compensate  the  surviving  hene- 
ficiaries  for  the  actual  pecuniary  loss  they  have  suffered  in 
the  death  of  the  employee.^*'  But  the  fact  that  the  bene- 
ficiaries are  wealthy,  will  not  necessarily  defeat  a  recovery; 
as  where  an  aged  parent  relied  upon  his  grownup  son  to 
manage  his  farm  of  1,800  acres.^^ 

§  170.  Rule  for  measurement  of  damages  differs  accord- 
ing to  relation  of  beneficiary. — "The  rule  for  the  measure- 
ment of  damages  must  differ  according  to  the  relation  be- 
tween the  parties  plaintiff  and  the  decedent,  'according  as 
the  action  is  brought  for  the  benefit  of  husband,  wife,  minor 
child  or  parent  of  minor  child,  for  the  loss  of  services  or 
support  to  which  the  beneficiary  was  legally  entitled,  or  is 
brought  for  the  benefit  of  a  person  whose  damages  consist 
only  in  the  loss  of  a  prospective  benefit  to  which  he  was  not 
legally  entitled.'  "^^  It  is  proper  for  the  court  to  tell  the 
jury  where  the  widow  with  her  children  are  the  beneficiaries, 


he  lived,  his  use  and  advice.  "This 
threw  the  door  open  to  the  widest 
speculation." 

"  Chesapeake  &  O.  Ry.  Co.  v. 
Dwyer,  1.57  Ky.  590;  163  S.  W.  752; 
St.  Louis,  etc.,  R.  Co.  v.  Gear,  (Tex. 
Civ.  App.);  149  S.  W.  1178;  Hard- 
wick  V.  Wabash  R.  Co.  (AIo.)  168 
S.  W.  328;  Gulf  C.  &  S.  F.  Ry.  Co.  v. 
McGinnis,  228  U.  S.  173;  33  Sup.  Ct. 
426;  57  L.  Ed.  785;  Louisville  &  N.  R. 
Co.  V.  Stewart,  156  Ky.  550;  161  S. 
W.  557;  New  York,  C.  &  St.  L.  Ry. 
Co.  V.  Niebel,  214  Fed.  952;  American 
R.  Co.  V.  Didricksen,  227  U.  S.  145; 
33  Sup.  Ct.  224;  57  L.  Ed.  456;  LouLs- 
ville  &  N.  R.  Co.  v.  FleininK  (Ala.) 
69  So.  125;  Kansas  City  So.  Ry.  Co. 
V.  Leslie,  35  Sup.  Ct.  844,  reversing 
112  Ark.  305;  167  S.  W.  83,  holding 
an  instruction  erroneous. 

Insurance  paid  because  of  death 
docs  not  reduce  the  amount  of  the 
recovery.  lirabham  v.  Baltimore  & 
O.  R.  Co.  220  Fed.  35. 

"  Garrett  v.  Louisville  &  N.  R.  Co. 
197  Fed.  715. 

"This  question  of  loss  of  prospective 
gifts  to  the  parents  will  ordinarily  in- 
volve UQ  inquiry  into  the  means  and 
earning  capacity  of  the  decedent  on 
the  one  hand,  and  the  means  and 
earning  capacity  of  the  parents  on  the 


other.  The  extent  of  previous  con- 
tributions for  support  would  clearly 
be  a  proper  consideration.  *  *  *, 
In  the  nature  of  the  case  evidence 
cannot  be  very  definite  as  to  the 
actual  amount  of  the  pecuniary  loss 
sustained  in  such  a  case,  but  it  does 
devolve  upon  the  plaintiff  to  show 
those  general  facts  which  are  neces- 
sarily within  the  general  knowledge 
of  the  beneficiaries  and  which  bear 
upon  the  financial  resources  and  pros- 
pects of  themselves,  as  well  as  those 
of  the  decedent."  ISIcCoullough  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.  160  Iowa 
524;  142  N.  W.  67. 

"*  Michigan  Central  R.  Co.  v. 
Vreeland,  227  U.  S.  59;  33  Sup.  Ct. 
192;  57  L.  Ed.  412,  reversing  189  Fed. 
495,  quoting  from  Tiffany,  Death 
by  Wrongful  Act,  §  158;  Bennett  v. 
Southern  Ry.  (S.  C.)  79  S.  E.  710; 
Fogarty  v.  Northern  Pacific  Ry.  Co. 
(Wash.)  147  Pac.  652;  Norfolk  & 
W.  Ry.  Co.  V.  Holl)rook  (U.  S.)  35 
Sup.  Ct.  143,  reversing  215  Fed.  687; 
Illinois  Central  R.  Co.  v.  Doherty, 
153  Ky.  363;  155  S.  W.  1119. 


DAMAGES. 


243 


that  the  pecuniary  loss  sustained  would  be  greater  than 
where  the  beneficiaries  were  all  adults  or  merely  next  of 
kin.^^  ''The  elements  which  make  up  the  total  damage  re- 
sulting to  a  minor  child  from  a  parent's  death  may  be 
materially  different  from  those  demanding  examination 
where  the  beneficiary  is  a  spouse  or  collateral  dependent 
relative ;  but  in  every  instance  the  award  must  be  based 
upon  money  value,  the  amount  of  which  can  be  ascertained 
only  upon  a  view  of  the  peculiar  facts  presented."^" 

§  171.    Damages  by  way  of  solatium. — Damages  cannot 


>9  Norfolk  &  W.  Ry.  Co.  v.  Hol- 
brook,  215  Fed.  687,  but  reversed  (U. 
S.)  35  Sup.  Ct.  143;  McCoullough  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.  160 
Iowa  524;  142  N.  W.  67. 

"The  ascertained  circumstances 
must  govern  in  every  case."  Norfolk 
&  W.  Ry.  Co.  V.  Holbrook  (U.  S.)  35 
Sup.  Ct.  183;  59  L.  Ed.  — . 

It  may  be  shown  that  the  deceased 
was  a  church  member  in  order  to 
show  pecuniary  loss  to  his  children 
who  thereby  lost  his  moral  training 
and  discipline  and  influence  which 
they  would  have  received.  White 
V.  Central  Vermont  Ry.  Co.  87  Vt. 
330;  89  Atl.  618. 

This  instruction  prior  to  1910  was 
held  a  proper  one  to  give:  "In  fixing 
the  simas  you  will  be  reasonable  and 
just,  and  fix  such  sums  as  will,  in 
your  honest  and  deliberate  judgment, 
recompense  or  compensate  the  wife 
and  child  for  such  pecuniary  or 
money  loss  as  they  actually  sus- 
tained in  consequence  of  the  death  of 
the  husband  and  father.  It  is  merely 
a  matter  of  pecuniary  loss,  however. 
You  cannot  allow  anything  whatever 
for  the  grief  or  anguish  of  the  wife 
or  child  by  reason  of  the  death.  You 
will  consider  the  age  of  the  deceased 
and  that  of  his  wife  and  child,  the 
condition  of  the  health  of  the  de- 
ceased, his  earning  capacity,  and  his 
reasonable  prospects  at  the  time  of 
his  death.  You  should  include  the 
value  of  the  support  and  protection 


by  the  deceased  of  the  wife  and 
dependent  child,  if  any,  that  they 
would  have  received  during  the  time 
that  he  probably  would  have  lived. 
You  should  also  consider  the  accumu- 
lation of  property  that  the  earnings 
of  the  deceased  would  probably  have 
made  had  he  continued  to  live,  if 
you  find  that,  and  the  reasonable 
expectation  that  the  wife  and  child 
had  of  pecuniary  advantage  by  ulti- 
mately receiving  such  accumulations, 
if  such  you  find.  The  limit  of  total 
compensation  to  both  wife  and  child 
is  such  sum  as,  being  put  at  interest, 
will  each  year,  by  taking  a  part  of 
the  principal  and  adding  it  to  the 
interest,  yield  an  amount  sufficient 
for  such  support  of  the  wife  and  the 
dependent  child  during  the  time  the 
deceased  would  probably  have  lived, 
as  he  would  have  furnished  had  he 
lived,  together  with  such  sum  as 
the  evidence  shows  there  is  a  reason- 
able expectation  the  wife  and  child 
would  have  received  from  his  earn- 
ings." Sweet  V.  Chicago  &  N.  W. 
Ry.  Co.  157  Wis.  400;  147  N.  W.  1054. 
For  another  instruction  that  was 
approved,  see  Chesapeake  &  Ohio  Ry. 
Co.  V.  Dwyer,  162  Ky.  427;  172  S.  W. 
918.  But  see  New  York,  C.  &  St.  L. 
R.  Co.  V.  Niebel,  214  Fed.  952.  For 
an  instruction  approved,  see  Louis- 
ville &  N.  R.  Co.  V.  Fleming  (Ala.) 
69  So.  125. 

20  Norfolk  &  W.  R.  Co.  v.  Holbrook 
(U.  S.)  35  Sup.  Ct.  143,  reversing  215 
Fed.  687;  American  R.  Co.  v.  Birch, 
224  U.  S.  547;  32  Sup.  Ct.  603;  56 
L.  Ed.  879. 


244  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

be  allowed  by  way  of  solatium  for  the  grief  and  wounded 
feelings  of  the  beneficiaries;-^  nor  can  a  widow  recover  for 
loss  of  companionship  of  her  husband.-" 

§172.  Minor  child's  damages. — "A  minor  child  sustains 
a  loss  from  the  death  of  a  parent,  and  particularly  of  a 
mother,  altogether  different  from  that  of  a  wife  or  husband 
from  the  death  of  the  spouse.  The  loss  of  security  and 
companionship,  and  of  the  acts  of  kindness  which  originate 
in  the  relation  and  are  not  in  the  nature  of  services,  are  not 
capable  of  being  measured  by  any  material  standard.  But 
the  duty  of  the  mother  to  minor  children  is  that  of  nurture 
and  of  intellectual  training,  such  as,  when  obtained  from 
others,  must  be  for  financial  compensation.  In  such  a  case 
it  has  been  held  that  the  deprivation  is  such  as  to  admit  of 
definite  valuation,  if  there  be  evidence  of  the  fitness  of  the 
parent,  and  that  the  child  has  been  actually  deprived  of  such 
advantages."-^  "The  pecuniary  injury  suffered  would  be 
much  greater  than  where  the  beneficiaries  were  all  adults 
or  dependents  who  were  mere  next  of  kin,  so  that  the  rela- 
tion existing  between  deceased  and  the  infant  beneficiaries 
prior  to  his  death  is  a  factor  in  fixing  the  amount  of  merely 
pecuniary  damages."-'*    "For,  as  the  loss  recoverable  is  the 

^1  Michigan    Central     R.     Co.     v.  -^  Michigan    Central     R.     Co.     v. 

Vreeland,  227  U.  S.  59;  33  Sup.  Ct.  Vreeland,  227  U.  S.  59;  33  Sup.  Ct. 

192;  57  L.  Ed.  417;  Cain  v.  Southern  192;   57   L.   Ed.   417,   reversing   189 

Ry.    Co.    199    Fed.    211;    St.    Louis,  Fed.  495;  Cain  v.  Southern  Ry.  Co. 

etc.,  R.  Co.  V.  Geer  (Tex.  Civ.  App.)  199  Fed.   211;  Bennett  v.   Southern 

149  S.  W.  1178;  Hubert  v.  Topeka,  Ry.  (S.  C.)  79  S.  E.  710;  St.  Louis, 

34    Fed.    510;    Perham    v.    Portland  etc.,  R.  Co.  v.  Duke,   192  Fed.  309; 

Electric  Co.  33  Ore.  458;  53  Pac.  14;  112  C.  C.  A.  564;  St.  Louis,  etc.,  R. 

40  L.   R.  A.  799;   72  Am.   St.  730;  Co.   v.   Geer    (Tex.    Civ.   App.)    149 

Garrett   v.   Louisville   &   N.   R.   Co.  S.  W.  1178;  McCoullough  v.  Chicago, 

197  Fed.  715;  Illinois  Central  R.  Co.  R.  I.  &  P.   Ry.  Co.   160  Iowa  524; 

V.  Barron,  5  Wall.  90;  18  L.  Ed.  591,  142  N.  W.  67;  St.  Louis,  I.  M.  &  So. 

affirming  1  Biss.  453;  Fed.  Cas.  No.  Ry.  Co.  v.  llodgers  (Ark.)  176  S.  .W. 

1053;    Blake    v.    Midland    Rv.    Co.  696. 

18  Q.  B.  93;  21  L.  J.  Q.  B.  233;  16  2"  Norfolk  &  W.  Ry.  Co.  v.  Hol- 

Jur.  502;  Hutchins  v.  St.  Paul,  etc.,  brook,   215   Fed.   687,   reversed,   but 

R.  Co.  44  Minn.  5;  46  N.  W.  79;  New  not  on  this  point  (U.  S.)  35  Sup.  Ct. 

York,  C.  &  St.  L.  Ry.  Co.  v.  Niebel,  143. 

214  l'\id.  952;  St.  Louis,  I.  M.  &  So.  The  value  of  a  father's  service  in 

Ry.  Co.  v.  Rodgers  (Ark.)  176  S.  W.  attention    to    and    care    and    super- 

696.  intendence  of  his  children  and  family, 

^-  New  York  C.  &  St.  L.  R.  Co.  v.  in   the  education  of  his  children,  of 

Niebel,  214  Fed.  952.  which  they  are  deprived  by  his  death 


DAMAGES.  245 

pecuniary  loss  only,  It  is  apparent  that  a  child  shortly  to 
become  of  age  could  not  suffer  so  great  a  loss  in  the  father's 
death  as  his  younger  brothers  and  sisters,  the  verdict  should 
refer  to  this  obvious  fact.""^  But  the  court  cannot  say  that 
the  pecuniary  injury  suffered  by  a  widow  and  infant  chil- 
dren is  much  greater  than  when  the  beneficiaries  are  all 
adults  or  dependents  who  are  next  of  kin.-*' 

§  173.  Measure  of  damages. — It  will  be  observed  that  the 
statute  does  not  undertake  to  fix  a  limit  to  the  amount  of  pe- 
cuniary damages  recoverable  for  the  death  of  the  employee ; 
and  a  state  statute  fixing  a  limit  in  case  of  death  has  no 
application  whatsoever.^"  Therefore,  the  courts  are  at  lib- 
erty to  apply  the  usual  rules  followed  in  such  instances. 
The  question  is,  "What  pecuniary  loss  did  the  beneficiaries 
suffer  by  the  death  of  the  deceased?"  In  ascertaining  that 
loss  the  age  of  the  deceased,  his  earning  capacity,  his  prob- 
able earnings,^^  his  habits  of  industry,  his  drinking  habits, 
and  any  other  fact  bearing  upon  his  capacity  to  furnish  the 
beneficiaries  a  livelihood  may  be  considered.'^^     The  special 

may  be  considered  as  an  element  of  N.  E.  1078;  Dooley  v.  Railroad  Co. 

pecuniary    loss.      Cain    v.    Southern  163  N.  C.  454;  79  S.  E.  970;  Irvin 

Ry.  Co.  199  Fed.  211.  v.  Railroad  Co.   164  N.  C.  454;  80 

"  Hardwick    v.    Wabash    R.    Co.  S.  E.  78;  Bowers  v.  Southern  Ry.  Co. 

181  Mo.  App.  156;  168  S.  W.  328.  10  Ga.  App.  367;  73  S.  E.  677. 

26  Norfolk  &  W.  Ry.  Co.  v.  Hoi-  "  Vreeland  v.  Michigan  Central  R. 

brook   (U.   S.)   35  Sup.   Ct.   143,  re-  Co.   189   Fed.   495,  reversed  but  not 

versing  215  Fed.   687.  on    this    point.       227    U.   S.   59;    33 

It  may  be  shown  that  the  deceased  Sup.    Ct.    192;    57    L.  Ed.  417,  but 

was    a    church    member,    to    show  not  on  this  point.    Kaght  v.  Sadtler, 

pecuniary  loss   to   his   children   who  etc.,  Co.  91  Mo.  App.  574;  St.  Louis, 

thereby  lost  his  moral  training  and  etc.,   Ry.   Co.   v.   Bowles   (Tex.  Civ. 

discipline  and   influence  which   they  App.)  72  S.  W.  Rep.  451;  Watson  v. 

would  have  received  if  he  had  lived.  Seaboard,  etc.,  R.  Co.  133  N.  C.  188; 

White  V.  Central  Vermont  Ry.  Co.  45  S.   E.   Rep.   555;   Davidson,  etc., 

87  Vt.  330;  89  Atl.  618.  Co.  v.  Severson,   109  Tenn.  572;  72 

'«Devine  v.  Chicago,  R.  I.  &  P.  S.  W.  Rep.  967;  Neal  v.  Wilmington, 

Ry.  Co.  266  111.  248;  107  N.  E.  595.  etc.,  Co.  3  Penn.   (Del.)  467;  Carter 

See  §  165a.  v.  North  Carohna  R.  Co.  139  N.  C. 

"Chesapeake   &   Ohio   R.   Co.   v.  499;  52  S.  E.   Rep.  642;  Beaumont, 

Dwyer,  162  Ky.  427;  172  S.  W.  918.  etc.,  R.  Co.  v.  Dilworth,  16  Tex.  Civ. 

Louisville  &   N.   R.  Co.  v.  Fleming  App.  257;  94  S.  W.  Rep.  352;  Knott 

(Ala.)  69  So.  125.    It  is  error  to  say  to  v.  Peterson,  125  la.  404;  101  N.  W. 

the  jury  that,  if  at  all,  the  plaintiff  is  Rep.  173;  San  Antonio,  etc.,  R.  Co. 

entitled  to  recover  the  present  value  of  v.  Brock  (Tex.  Civ.  App.)  80  S.  W. 

deceased's  net  earnings  based  on  his  Rep.  422;  Louisville  &  N.  R.  Co.  v. 

expectancy.      Kenney    v.    Seaboard  Fleming  (Ala.)  69  So.  125. 
Air  Line  Ry.  Co.  165  N.  C.  99;  80 


246 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


aptitude  of  the  deceased  for  a  particular  trade  may  be  con- 
sideredJ^  So  his  health  may  be  shown  as  bearing  upon  his 
earning  capacity,^'*  His  disposition  to  contribute  to  the  sup- 
port of  those  dependent  upon  him,  or  to  that  of  his  wife, 
children  or  parents,  is  a  factor  to  be  considered.^^  In  the 
case  of  a  widow,  at  least,  the  amount  of  damages  she  suf- 
fered may  be  based  upon  the  length  of  time  the  deceased 
would  probably  have  lived  f^  and  this  is  not  affected  by  her 
subsequent  marriage.^^  Where  the  deceased  had  a  child,  the 
value  of  his  services  for  the  care  and  education  of  such 
child  may  be  taken  into  consideration,^*  as  well  as  his  prob- 
able increase  of  earning  power.^^  "Where  the  wife  is  the 
beneficiary,  the  measure  of  damages  is  the  probable  amount 
she  would  have  received  if  he  had  lived  and  not  his  prob- 
able earnings.^®  If  the  beneficiaries  are  next  of  kin  depend- 
ent upon  him,  proof  of  mere  relationship  is  not  sufficient ; 
the  actual  fact  of  expectancy  must  be  shown.^^    Declarations 


'^  Snyder  v.  Lake  Shore,  etc.,  Ry. 
Co.  131  Mich.  418;  91  N.  W.  Rep.  643; 
Evarts  v.  Santa  Barbara,  etc.,  R. 
Co.  (Cal.  App.)  86  Pac.  Rep.  830; 
Reiter,  etc.,  Co.  v.  Howlin,  144  Ala. 
192;  40  So.  Rep.  280. 

8°  Coffey,  etc.,  Co.  v.  Carter,  65 
Kan.  565;  70  Pac.  Rep.  635. 

*'  Fajardo  v.  New  York  Cent.  R. 
Oo.  84  N.  Y.  App.  Div.  354:  Fogarty 
V.  Northern  P.  Co.  (Wash.)  147 
Pac.  652. 

*^  Chesapeake  &  Ohio  Ry.  Co.  v. 
Dwyer,  162  Ky.  427;  172  S.  W.  918; 
Cox  V.  Wilmington,  etc.,  Ry.  Co. 
4  Penn.  162  (Del.)  53  Atl.  Rep.  569. 

*^  Consolidated  Store  Co.  v.  Mor- 
gan, 160  Ind.  241;  66  N.  E.  Rep. 
696;  Chicago,  etc.,  R.  Co.  v.  Driscoll, 
207  111.  9;  69  N.  E.  Rep.  620;  but 
see  Hewill  v.  East,  etc.,  Co.  (Mich.) 
98  N.  W.  Rep.  992. 

**  Cameron,  etc.,  Co.  v.  Anderson, 
98  Tex.  156;  81  S.  W.  Rep.  282; 
McCoullough  V.  Chicago,  R.  I.  & 
P.  Ry.  Co.  160  Iowa  524;  142  N.  W. 
67;  Cain  v.  Southern  Ry.  Co.  199 
Fed.  211. 

Mortality  tables  may  be  based  on 
the  expectancy  of  life.  Mix  v.  Ham- 
burg, «!tc.,  Co.  85  N.  Y.  App.  Div. 
475;   83   N.    Y.    St.   322;    Knott   v. 


Peterson,  125  la.  404;  101  N.  W. 
Rep.  524;  Ft.  Worth,  etc.,  R.  Co.  v. 
Linthicum,  33  Tex.  Civ.  App.  375; 
77  S.  W.  Rep.  40.     See  §  174. 

85  Halverson  v.  Seattle  El.  Co.  35 
Wash.  600;  77  Pac.  Rep.  1058; 
Barnes  v.  Columbia  Lead  Co.  107 
Mo.  App.  608;  82  S.  W.  Rep.  203; 
American  R.  Co.  v.  Birch,  224  U.  S. 
547;  32  Sup.  Ct.  603;  56  L.  Ed.  879. 

8^  Reed  v.  Queen  Anne  R.  Co.  4 
Penn.  (Del.)  413;  57  Atl.  Rep.  529; 
Houston,  etc.,  R.  Co.  v.  Turner,  34 
Tex.  Civ.  App.  397;  78  S.  W.  Rep. 
712  (jury  to  consider  whether  a  less 
sum  presently  paid  would  compen- 
sate her).  Kenney  v.  Seaboard  Air 
Line  Ry.  Co.  165  N.  C.  99;  80  S.  E. 
1078,  with  which  compare  Louisville 
&  N.  R.  Co.  V.  Stewart,  156  Ky.  550; 
161  S.  W.  557,  modified  157  Ky.  642; 
163  S.  W.  755. 

But  it  has  been  held  that  the  wid- 
ow's recovery  for  pecuniary  loss  can- 
not exceed  the  probable  earnings  of 
the  deceased.  Chesapeake  &  Ohio 
Ry.  Co.  V.  Dwyer,  162  Ky.  427;  172 
S.  W.  918;  Fogarty  v.  Northern  P. 
R.  Co.  (Wash.)  147  Pac.  652. 

8'  Illinois  Central  R.  Co.  v.  Doher- 
ty,   153  Ky.  363;   155  S.  W.   1119; 


DAMAGES.  247 

of  deceased  evincing  a  probable  support  are  admissible.""  If 
the  suit  is  for  the  loss  of  a  wife,  the  husband  being  the 
beneficiary,  the  fact  of  his  remarriage  cannot  be  shown."** 
The  jury  must  determine  the  amount  of  the  loss,  and  to  do 
this  may  apply  their  own  observation,  experience  and  knowl- 
edge to  the  circumstances  of  the  case  f^  but  they  must  con- 
fine themselves  to  the  evidence."^  The  expectancy  of  the 
life  of  the  deceased  may  be  shown  ;^-  but  to  show  this  the 
longevity  of  the  father  or  mother  of  the  deceased  cannot  be 
shown.^^  If  the  beneficiaries  are  dependent  upon  the  de- 
ceased, then  their  expectancy  in  life  may  be  shown.®*  The 
fact  that  the  deceased  father  may  have  become  impoverished 
if  he  had  lived,  and  thus  a  burden  to  his  children,  need  not 
be  considered  by  the  jury."^  It  cannot  be  shown  what  would 
be  the  cost  of  an  annuity  bond  on  the  deceased's  expectancy 
of  life  which  would  be  sufficient  to  produce  an  annual  in- 
come equal  to  his  annual  income  at  the  time  of  his  death. ^'^ 
In  case  of  the  death  of  a  parent  leaving  a  minor  child,  the 
child's  loss  of  care,  education,  support  and  moral  training 
is  a  subject  for  the  jury's  consideration  ;®^  and  it  may  also  be 

McCullough  V.  Chicago,  R.  I.  &  P.  Kansas  City,    178   Mo.   528;   77   S. 

Ey.  Co.  160  Iowa  524;  142  N.  W.  67;  W.  Rep.  890;  Louisville  &  N.  R.  Co. 

Standard,   etc.,   Co.   v.   Munsey,   33  v.  Fleming  (Ala.)  69  So.  125. 

Tex.  Civ.  App.  416;  76  S.  W.  Rep.  "^  Hinsdale  v.  New  York,  etc.,  R. 

931;   Chesapeake  &   O.   Ry.   Co.   v.  Co.  81  N.  Y.  App.  Div.  617. 

Dwyer,  157  Ky.  590;  163  S.  W.  752;  ^*  The   Dauntless,    121   Fed.   Rep. 

Collins  V.  Pennsylvania  R.  Co.   148  420. 
N.  Y.  Supp.  777. 

88  Gulf,  etc.,  R.  Co.   v.  Brown,  33  "^  Stemples  v.  Metropolitan  St.  Ry. 

Tex.  Civ.  App.  269;  76  S.  W.  Rep.  Co.  174  N.  Y.  512;  66  N.  E.  Rep.  1117. 

794.  86  Hinsdale  v.  New  York,  etc.,  R. 

8'  International,   etc.,    Ry.    Co.   v.  Co.  81  N.  Y.  App.  Div.  617. 

Boykin   (Tex.   Civ.  App.)   85  S.  W.  The  pecuniary  damages  cannot  be 

Rep.    1163;   St.   Louis,   etc.,   R.   Co.  vitiated  to  an  amount  which  at  inter- 

V.  Cleere  (Ark.)  88  S.  W.  Rep.  995  est,  would,  together  with  the  principal, 

(a  wife  remarrying).  yield    the    decedent's    defendant    an 

**•  Denver,  etc.,  R.  Co.  v.  Gunning,  annual  income  equal  to  the  amount 

33    Colo.    280;    80    Pac.    Rep.    727;  he    would    otherwise    have    received 

Utah,  etc.,  Co.  v.  Diamond,  etc.,  Co.  during  the  period  of  his  life  expect- 

26  Utah,  299;  73  Pac.  Rep.  524.  ancy.    Chesapeake  &  Ohio  Ry.  Co.  v. 

"» Cleveland,      etc.,      R.      Co.     v.  Dwyer,  157  Ky.  590;  172  S.  W.  918; 

Drumm,  32  Ind.  App.  547;  70  N.  E.  Chesapeake    &    Ohio     Ry.    Co.     v. 

Rep.  286.  Kelley,  160  Ky.  296;  169  S.  W.  736. 

"-  Coffeyville,  etc.,  Co.   v.   Carter,  "  Ganoche    v.    Johnson,    etc.,    Co. 

65    Kan.    565;    70    Pac.    Rep.    635;  116  Mo.  App.  596;  92  S.  W.   Rep. 

Haines   v.    Pearson,    100    Mo.    App.  918;     Beaumont,     etc.,     Co.     v.  Dil- 

551;  75  S.  W.  Rep.   194;  Jones  v.  worth,  16  Tex.  Ct.  Rep.  257;  94  S. 


248 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


shown  in  defense  that  he  had  abandoned  it  f^  or  his  solici- 
tude for  its  moral  training.'"'  In  case  of  the  death  of  a  minor 
child,  the  value  of  his  services  until  maturity  may  be  re- 
covered ;^°°  and  it  may  be  shown  that  he  was  obedient,  indus- 
trious and  economical.^"^  But  it  should  be  observed  that  the 
damages  to  the  child  are  not  limited  to  those  which  accrued 
during  his  minority.^"-  If  a  parent  is  the  beneficiary,  then 
damages  may  be  awarded  for  reasonable  expectation  of  the 
parent  of  benefits  that  might  have  accrued  for  the  services 
of  the  deceased  child  ;^°^  but  not  for  grief  or  anguish  to 
the  parent  nor  for  sufferings  of  the  child.^°*  The  parent 
when  dependent  on  the  child  is  entitled  to  recover  more 
than  nominal  damages. ^°^  The  amount  of  property  left  by 
the  deceased  is  not  a  subject  of  inquiry,^"*'  nor  the  pecuni- 
ary resources  of  the  widow  or  next  of  kin  or  their  unfor- 
tunate condition. ^°'  Declarations  of  the  deceased  concerning 
efforts  of  his  children  to  get  his  property  away  from  him  are 


W.  Rep.  352;  Texas,  etc.,  R.  Co.  v. 
Green,  15  Tex.  Ct.  Rep.  133;  95  S.  W. 
Rep.  694;  IMcCoullough  v.  Chicago, 
R.  I.  &  P.  Ry.  Co.  160  Iowa  524; 
142  N.  W.  67. 

'*  Beaumont,  etc.,  Co.  v.  Dil- 
worth,  supra. 

^^  St.  Louis,  etc.,  R.  Co.  v.  Mathias 
(Ark.)  91  S.  W.  Rep.  763. 

""'  Cumberland,  etc.,  Co.  v.  Ander- 
son, 89  Miss.  732;  41  So.  Rep.  263; 
McCoullough  V.  Chicago,  R.  I.  &  P. 
Ry.  Co.  160  Iowa  524;  142  N.  W. 
67. 

""  Anthony,    etc.,    Co.    v.    Ashby, 

198  111.  562;  64  N.  E.  Rep.  1109: 
Stempels  v.  Metropolitan  St.  Ry 
Co.  174  N.  Y.  512;  66  N.  E.  Rep 
1117;  St.  Louis,  etc.,  Ry.  Co.  v 
Haist,  71  Ark.  258;  72  S.  W.  Rep.  893 
McCoullough  V.  Chicago,  P.  I.  &  P 
Ry.  Co.  160  Iowa  524;  142  N.  W.  67 

'"-Galveston,  etc.,  Py.  Co.  v 
Puonta,  30  Tex.  Civ.  App.  246;  70 
S.  W.  Pep.  362. 

'"^  Chicago,  (!tc.,  R.  Co.  v.  Beaver, 

199  111.  .34;  (;5  X.  E.  Pep.  144;  Corbett 
v.  Oregon,  etc.,  P.  Co.  25  Utah,  449; 
71  Pac.  Rep.  1005;  Draper  v.  Tucker, 


69  Neb.  434;  95  N.  W.  Rep.  1026; 
Garrett  v.  Louisville  &  N.  R.  Co. 
197  Fed.  715;  117  C.  C.  A.  109,  but 
not  loss  of  the  son's  society  and  com- 
panionship. American  R.  Co.  v. 
Didricksen,  227  U.  S.  145;  33  Sup. 
Ct.  224;  57  L.  Ed.  456.  In  this  la.st 
case  it  was  held  error  to  say  to  the 
jury  that  they  might  "take  into 
consideration  the  fact  that  they 
[the  beneficiaries]  are  the  father  and 
mother  of  the  deceased,  and  the  fact 
that  they  are  deprived  of  his  society 
and  any  care  and  consideration  he 
might  take  of  them  or  have  for  them 
during  his  life,"  especially  as  there 
was  no  allegation  of  any  such  loss, 
nor  evidence  relating  to  the  subject 
or  from  which  its  pecuniary  value 
would  have  been  estimated. 

'"'  Corbett  v.  Oregon,  etc.,  Ry. 
Co.  supra. 

'°^  Bowerman  v.  Lackawanna  Min- 
ing Co.  98  Mo.  App.  308;  71  S.  W. 
Rep.  1062.  The  burden  is  not  on  the 
plaintiff  to  show  that  the  deceased 
would  have  contributed  to  the 
parents'  support.  Raines  v.  Southern 
Ry.  Co.  (N.  C.)  85  S.  E.  294. 

'"'  Chicago,  etc.,  R.  Co.  v.  Holmes, 
68  Neb.  826;  94  N.  W.  Pep.  1007. 

'"  Pittsburg,  etc.,  P.  Co.  v.  Kin- 
mare,  203  111.  388;  67  N.  E.  Rep.  826. 


DAMAGES.  249 

not  admissible.'"^  The  physical  condition  of  the  beneficiary 
cannot  be  shown  i'""  nor  loss  of  society""  and  grief."^ 
"What  the  measure  of  damages  should  be  depends  to  a 
great  extent  upon  the  relationship  of  the  survivors  to  the 
deceased  and  the  pecuniary  loss  sustained  by  them  by  reason 
of  his  death.  The  widow  and  children  are  naturally  de- 
pendent upon  him  to  a  greater  extent  than  any  other  rela- 
tive and  entitled  to  support  from  the  husband  and  parent. 
For  this  reason  they  would  no  doubt  be  entitled  to  a  larger 
compensation  than  other  relatives.  Next  to  them  the  par- 
ents are  more  dependent  upon  a  son  than  any  others,  as 
there  is  not  only  a  moral,  but  a  legal,  duty  on  the  part  of  a 
child  to  contribute  toward  the  support  and  maintenance  of 
his  parents  when  they  are  unable  to  support  themselves. 
The  provisions  for  the  benefit  of  relatives  other  than  those 
before  mentioned  is  not  unlimited,  as  the  act  expressly 
provides  only  for  such  next  of  kin  as  were  'dependent'  upon 
the  deceased.  The  amount  of  recovery  must  naturally  de- 
pend to  a  very  great  extent  upon  the  contribution  by  the 
deceased  to  those  for  whose  benefit  the  action  is  prosecuted 
by  the  personal  representative.  If  the  deceased  contrib- 
uted nothing  toward  the  support  of  the  next  of  kin  and  he 
leaves  no  widow,  children,  or  parents  surviving  him  there 
can  be  no  recovery,  because  they  sustained  no  pecuniary 
loss  by  reason  of  his  death.""-     There  can  be  no  recovery 


^"^  Brown  v.  Southern  Ry.  Co.  65  "'  Contra,    Evarts    v.    Santa    Bar- 

S.  C.  260;  43  S.  E.  Rep.  794.  bara,  etc.,   R.  Co.  supra;  Brickman 

'»' Seattle,    etc.,    Co.    v.    Hartless,  v.   Southern   R.   Co.   74  S.   C.   306; 

144   Fed.   Rep.   379;   contra.   Evarts  54  S.  E.  Rep.  553;  Parker  v.  Crowell, 

V.    Santa    Barbara,    etc.,    R.    Co.    3  etc.,  Co.  115  La.  463;  39  So.  Rep.  445; 

Cal.   App.   712;   86   Pac.    Rep.   830;  Kelley  v.  Ohio,  etc.,   R.  Co.  58  W. 

Emery  v.  Philadelphia,  208  Pa.  St.  Va.  216;  52  S.  E.  Rep.  520. 

492;  57  Atl.  Rep.  977;  Fidelity,  etc.,  "^  Fithian   v.   St.    Louis   &   S.    F 

Co.  V.  Buzzard,  69  Kan.  330;  76  Pa.  Ry.  Co.   188  Fed.  842;  Duke  v.  St 

St.  832;  Texas,  etc.,  R.  Co.  v.  Green,  Louis  &  S.  F.  R.  Co.  172  Fed.  684 

15  Tex.  Ct.  Rep.  133;  95  S.  W.  Rep.  192   Fed.    306;    112   C.    C.    A.    564 

694;    Texarkana,    etc.,     R.    Co.    v.  American  R.  Co.  v.  Birch,  224  U.  S 

Fugier,  16  Tex.  Ct.  Rep.  724;  95  S.  547;  32  Sup.  Ct.  603;  56  L.  Ed.  879 

W.  Rep.  563.  McCoullough  v.  Chicago,  R.  I.  &  P 

»"  New  York  C.  &  St.  L.  R.  Co.  v.  R.  Co.  160  Iowa  524;  142  N.  W.  67 
Niebel.  214  Fed.  952. 


250  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

of  punitive  damages,  all  consideration  of  punitive  elements 
being  excluded  ;^^^  nor  for  funeral  expenses.^^* 

§  174.  Use  of  annuity  tables. — In  determining  the 
amount  of  damages,  annuity  tables  may  be  resorted  to  where 
the  action  is  brought  by  the  personal  representative,  but  not 
if  the  action  be  a  continuation  of  the  one  brought  by  the 
deceased.  These  "tables  may  be  considered  by  the  jury  in 
ascertaining  the  compensation  the  plaintiff  is  entitled  to 
receive  for  the  pecuniary  injuries  sustained  by  the  widow 
and  children  by  reason  of  the  death  of  the  intestate;  but 
the  jury  may  also  consider  the  state  of  health  of  the  in- 
testate, his  age,  habits,  occupation,  and  the  likelihood  of 
his  being  able  to  work  during  the  period  of  his  expectancy 
of  life."^^^ 

§  175.  Interest. — Interest  cannot  be  added  by  the  jury  or 
court  upon  the  amount  due,  because  the  statute  does  not 
provide  for  it  ;"^  nor  can  interest  be  allowed  on  the  verdict, 
even  though  a  state  statute  provides  for  it.^^^ 

§  176.  Damages  not  part  of  the  estate. — As  the  amount 
recovered  is  for  the  benefit  of  the  beneficiaries  it  forms  no 
part  of  the  estate,"^  and  cannot  be  taken  to  pay  its  debts."^ 

"'  Michigan    Central    R.    Co.    v.  condition.      Smith    v.    Lehigh,    etc., 

Vreeland,  227  U.  S.  59;  33  Sup.  Ct.  R.  Co.  177  N.  Y.  379;  69  N.  E.  Rep. 

192;  57  L.  Ed.  417;  American  R.  Co.  729. 

V.  Didricksen,  227  U.  S.  145;  33  Sup.  "« Walsh  v.  New  York,  N.  H.  &  H. 

Ct.  224;  57  L.Ed.  456;  Cain  V.  South-  R.  Co.  173  Fed.  494.    Note  84,  p.  236. 

era  R.  Co.  199  Fed.  211;  St.  Louis,  "^  Central  R.  Co.  v.  Sears,  66  Ga. 

etc.,  R.  Co.  V.  Geer  (Tex.  Civ.  App.)  499;  Cook  v.  New  York,  etc.,  R.  Co. 

149  S.  W.  1178.  10  Hun.  426. 

1"  Collins  V.  Pennsylvania   R.  Co.  "'  Norton  v.  Erie  R.  Co.  163  App. 

163  App.  Div.  452;  148  N.  Y.  Supp.  Div.  468;  148  N.  Y.  Supp.  771. 

777.  "8  Taylor  v.  Taylor,  232  U.  S.  363; 

Where   counsel   said    to   the    jury  34  Sup.  Ct.  350;  58  L.  Ed.  638;  Mc- 

that  the  verdict  asked  was  not  a  very  Coullough  v.  Chicago,  R.  I.  &  P.  Ry. 

serious  matter  to  a  railroad  company,  Co.   160  Iowa  524;   142  N.   W.   67; 

"taking   from   them   a   few   coppers,  Gottlieb  v.  North  Jersey  St.  Ry.  Co. 

but  it  means  a  good  deal  to  the  plain-  72  N.  J.  L.  480;  63  Atl.  Rep.  339; 

tiff,"  his  statement  was  held  to  ex-  Cleveland,    etc.,    R.    Co.    v.    Osgood, 

ceed  the  limit  of  legitimate  advocacy.  34  Ind.  App.  34;  73  N.  E.  Rep.  285. 

Caverhill    v.    Boston   &   M.    R.   Co.  "^  In   re  Williams   Est.    130   Iowa 

(Vt.)  91  Atl.  917.  .553;   107  N.  W.  Rep.  608;  Western 

The   photograph    of   the   deceased  R.    Co.    v.    Russell,    144    Ala.    142; 

cannot  be  used  to  show  bis  physical  39  So.  Rep.  311. 


DAMAGES.  251 

Thus,  damages  occasioned  to  liis  employer  by  the  deceased 
cannot  be  set  off  against  the  amount  recoverable  for  his 
death.^20 

§177.  Amount  of  damages — Illustrations.— I  can  give 
only  a  few  illustrations  of  the  amount  of  damages  recovered 
under  this  statute  prior  to  1910,  with  the  courts'  de- 
cisions. Thus  where  a  brakeman  of  24  years,  earning  $80 
to  $85  per  month,  having  a  life  expectancy  of  thirty-nine 
years  and  six  months,  whose  health  before  the  injury  was 
good  and  afterwards  poor,  suffered  severe  pain  at  the  time 
of  the  accident,  and  four  or  five  days  had  his  right  arm 
amputated  two  inches  below  the  elbow,  it  was  held  that  a 
verdict  for  $15,000  should  be  reduced  to  $12,000.'-^  In  an- 
other case  the  deceased  employee  was  29  years  of  age  at 
his  death,  and  had  a  life  expectancy  of  36  years,  if  he  had 
been  in  normal  health.  He  married  when  20  years  of  age, 
and  during  the  succeeding  nine  years,  though  apparently 
industrious,  he  had  spent  several  thousand  dollars  of  his 
wife's  estate  and  all  he  himself  had  made,  and  left  an  estate 
of  only  $250,  Before  he  was  married  he  taught  school,  and 
after  marriage  did  hauling,  stacked  lumber  in  a  sawmill, 
worked  on  a  farm  a  year,  and  then  began  breaking  on  de- 
fendant railway,  contributing  to  his  wife  and  five  children 
an  average  of  $34  per  month.  During  his  married  life  he 
had  been  confined  in  a  hospital  with  a  bronchial  cough.  One 
of  his  lungs  was  dead,  and  testimony  showed  that  that  fact 
would  greatly  shorten  his  life.  The  jury  gave  a  verdict  for 
$17,545,  but  the  court  cut  it  down  to  $6,000.^  In  another 
case  of  instantaneous  death,  where  no  allowance  was  made 
for  suffering,  and  where  the  deceased  had  been  guilty  of 
such  contributory  negligence  as  would  have  barred  a  recov- 
ery but  for  the  statute,  a  verdict  for  $10,000  was  reduced 
to  $7,500."    Where  an  employee  had  both  legs  cut  off  at  the 

»2o  Western     R.     Co.     v.     Russell,  » Duke  v.  St.  Louis,  etc.,  R.  Co. 

supra.  172  Fed.  684. 

•■"  Bradbury  v.  Chicago,  R.  I.  &  P.  ^  Cain  v.  Southern  R.  Co.  199  Fed. 

Ry.  Co.  149  Iowa,  51 ;  128  N.  W.  1.  211,  213. 


252  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

knees,  and  during  the  five  hours  he  lived  suffered  great 
pain,  and  mental  anguish  in  contemplation  of  death,  con- 
tinually begging  persons  near  to  pra}^  for  liim,  a  verdict  for 
$10,000  for  pain  and  mental  anguish  he  suffered  was  re- 
duced to  $5,000.^  A  freight  conductor  was  killed  in  the 
yards  by  reason  of  his  own  negligence  while  on  his  way  to 
enter  his  caboose,  his  train  having  just  been  made  up.  His 
negligence  consisted  in  his  failure  to  observe  or  heed  the 
signals  of  a  switch  engine,  and  in  walking  down  the  track 
ahead  of  it.  No  negligence  on  the  part  of  the  defendant 
railway  was  shown,  and  on  that  ground  the  verdict  was  set 
aside.  But  the  court  said  that  a  verdict  of  $35,000  was 
excessive  even  though  the  defendant  had  been  negligent.* 
An  engineer  left  a  widow  and  four  children.  The  youngest 
child  was  six  years  old  and  mentally  afflicted.  The  jury 
returned  a  verdict  for  $11,885,  giving  to  the  widow  and 
three  older  children  each  an  equal  amount  and  to  the 
youngest  $4,465.  It  was  held  that  the  amount  awarded  the 
j^oungest  child  was  not  excessive.^  $20,000  for  widow  and 
child  beneficiaries  has  been  held  not  excessive.*'  A  common 
laborer,  23  years  old,  remained  with  and  assisted  his  par- 
ents until  a  few  months  before  his  death.  Out  of  his  first 
month's  w^ages  he  sent  $10  to  his  father  because  of  the  lat- 
ter's  needs.  The  parents  worked  on  the  farm,  but  did  not 
own  it.  It  was  held  that  there  was  not  such  a  failure  of 
proof  of  pecuniary  loss  to  the  parents  that  the  defendant 
was  entitled  to  either  a  judgment  because  of  a  verdict  for 
$2,000  or  a  new  trial.'^  Where  the  evidence  only  showed 
the  mere  fact  that  contributions  had  been  made  to  his  par- 
ents by  the  deceased  son  in  some  amount  by  paying  for  his 
board  and  room  for  two  years  or  more,  the  parents  being 

'  St.  Louis,  etc.,  R.  Co.  v.  Hcstcrly,  *  Southern    Ry.    Co.    v.    Vaughn 

98  Ark.   240;    135   S.   W.   874,    but  (Tex.    Civ.    App.)    164   S.    W.    885. 

reversed  on  other  points.     St.  Louis,  Contra,  where  a  brakeman  was  earn- 

etc,   R.  Co.   V.   Hesterly,  228  U.   S.  ing  only  $100  per  month.     Gulf  C. 

702;  33  Sup.  Ct.  703;  57  L.  Ed.  1031.  &   S.   F.   Ry.   Co.    (Tex.   Civ.   App.) 

*  Neil    v     Idaho,    ete.,    R.    Co.    22  153  S.  W.  651. 

Idaho  74;  125  I^io.  331.  '  Lundeen  v.  Great  Northern  Ry. 

'  Loiii.sviiie  A:  N.  R.  Co.  v.  Stewart  Co.  (Minn.)  150  N.  W.  1088. 
(Ky.)  174  S.  W.  744. 


DAMAGES.  253 

working  people  between  50  and  60  years  of  age,  a  verdict 
for  $5,000  was  held  unsupported  by  the  evidence.^ 

§  178.  Contributory  neglig-ence  reducing  the  amount  of 
recovery. — The  statute  expressly  provides  that  "the  fact 
that  the  employee  may  have  been  guilty  of  contributory 
negligence  shall  not  bar  a  recovery,  but  the  damages  shall  be 
diminished  by  the  jury  in  proportion  to  the  amount  of  neg- 
ligence attributable  to  such  employee.""  It  will  thus  be  seen 
that  contributory  negligence  does  not  prohibit  a  recovery, 
but  it  does  reduce  the  damages  otherwise  recoverable.  The 
meaning  of  the  statute  is  that  where  the  casual  negligence  is 
partly  attributable  to  the  employee  and  partly  to  the  car- 
rier, he  can  recover  only  a  proportional  amount,  bearing  the 
same  relation  to  the  full  amount  as  the  negligence  attribut- 
able to  the  carrier  bears  to  the  entire  negligence  attribut- 
able to  both.^°  Thus  where  a  freight  conductor  was  negli- 
gent in  failing  to  see  that  the  switch  of  the  siding,  on  which 
his  train  had  entered,  was  closed,  and  the  engineer  of  the 
passenger  train  following  was  also  negligent  in  not  discov- 
ering that  the  switch  was  open,  in  time  to  have  stopped  his 
train,  it  was  held  proper  for  the  court  to  tell  the  jury  the 
deceased  was  guilty  of  contributory  negligence,  and  that  the 
jury,  after  having  found  the  amount  of  damages  to  which 
his  next  of  kin  would  be  entitled  in  the  absence  of  his  con- 
tributory negligence,  they  should  abate  that  sum  by  the 
amount  tbey  should  find  represented  his  proportionate  con- 
tributory negligence.  "Manifestly,"  said  the  Circuit  Court 
of  Appeals,  "to  give  effect  to  the  act,  it  is  essential  that  the 
relative  amounts  caused  by  the  negligence  of  the  respective 

8  McCoullough  V.  Chicago,  R.  I.  &  Weber  v.  Great  Northern  R.  Co.  125 
P.  Ry.  Co.  160  Iowa,  524;  142  N.  W.  Minn.  348;  147  N.  W.  427. 
67.  $10,000  for  loss  of  right  arm.  It  is  the  duty  of  the  court,  on  re- 
Plaintiff  earning  $125  pernionth,  and  quest,  to  give  concrete  instructions 
60  years  old.  Knapp  v.  Great  North-  defining  the  acts  which  amount  to 
ern  Ry.  Co.  (Minn.)  153  N.  W.  848.  contributory  neglect,  and  a  failure 
"  Section  3  of  statute.  to  do  so  is  a  reversible  error.  Illinois 
'"  Norfolk,  etc.,  R.  Co.  v.  Earnest,  Central  Ry.  Co.  v.  Nelson,  203  Fed. 
229  U.  S.  114;  33  Sup.  Ct.  654;  57  957;  Carpenter  v.  Kansas  City  Ry. 
L.  Ed.  1096;  Seaboard  A.  L.  Ry.  Co.  Co.  (Mo.  App.)  175  S.  W.  234; 
V.  Tilghman,  35  Sup.  Ct.  653,  revers-  Seaboard  Air  L.  Ry.  Co.  v.  Tilghman, 
ing  167  N.  C.  163;  83  S.  E.  315,  1090;  237  U.  S.  499.  Contributory  negli- 
Seaboard  A.  L.  Ry.  Co.  v.  Tilghman,  gence  reduces  the  damages.  Kenney 
227  U.  S.  499;  Walsh  v.  Lake  Shore  v.  Seaboard  Air  Line  Ry.  Co.  165 
&  M.  R.  Co.  (Mich.)  151  N.  W.  754;  N.  C.  99;  80  S.  E.  1078;  La  Mere  v. 
Louisville  &  N.  R.  Co.  v.  Winkler,  Ry.    Transfer    Co.    125    Minn.    526; 

162  Ky.  843;  173  S.  W.  151;  Cincin-  145  N.  W.  1068;  Bowers  v.  Southern 
nati,  N.  O.  &  T.  P.  Ry.  Co.  v.  Goode,  Ry.  Co.  10  Ga.  App.  367;  73  S.  E. 

163  Ky.  60;  173  S.  W.  329;  Pennsyl-  677;  Jones  v.  Kansas  City  So.  Ry. 
vania  R.  Co.  v.  Sheeley,  221  Fed.  901;  Co.  (La.)  68  So.  401 ;  Rains  v.  South- 
ern Ry.  Co.  (N.  C.)  85  S.  E.  294. 


254  FEDERAL,    EMPLOYERS'    LIABILITY    ACT. 

parties  should  be  declared,  and  we  know  of  no  fairer  method 
than  that  followed  by  the  trial  judge  in  the  ease."^^  The 
contributory  negligence  of  the  employee  must  be  compared 
with  the  entire  negligence  involved  in  the  case  and  not 
"with  the  negligence  of  the  defendant"  alone.  Thus  where 
the  court  told  the  jury  that  where  the  plaintiff  was  guilty 
of  contributory  negligence  the  damages  should  be  dimin- 
ished in  proportion  to  the  amount  of  negligence  attributable 
to  the  plaintiff,  which  "goes  by  way  of  diminution  of 
damages,"  it  was  held  that  no  error  was  committed  by  the 
use  of  the  quoted  words,  but  that  the  additional  words  "as 
compared  with  the  negligence  of  the  defendant  were  er- 
roneous." "But  for  the  use  in  the  second  instance  of  the 
additional  words,"  said  the  court,  "  'as  compared  with  the 
negligence  of  the  defendant,'  there  would  be  no  room  for 
criticism.  These  words  were  not  happily  chosen,  for  to  have 
reflected  what  the  statute  contemplates  they  should  have 
read,  *as  compared  with  the  combined  negligence  of  him- 
self and  the  defendant.'  We  say  this  because  the  statutory 
direction  that  the  diminution  shall  be  'in  proportion  to  the 
amount  of  negligence  attributable  to  such  employee'  means 
and  can  only  mean,  that,  where  the  casual  negligence  is 
partly  attributable  to  him  and  partly  to  the  carrier,  he  shall 
not  recover  full  damages,  but  only  a  proportional  amount, 
bearing  the  same  relation  to  the  full  amount  as  the  negli- 
gence attributable  to  the  carrier  bears  to  the  entire  negli- 
gence attributable  to  both  ;  the  purpose  being  to  abrogate  the 
common  law  rule  completely  exonerating  the  carrier  from 
liability  in  such  case,  and  to  substitute  a  new  rule,  confining 
the  exoneration  to  a  proportional  part  of  the  damages, 
corresponding  to  the  amount  of  negligence  attributable  to 
the  employee.  "^^    Under  this  rule,  if  the  carrier  is  negligent 

"  Louisville,  etc.,  R.  Co.  v.  Wene,  L.  Ed.  785;  Pennsylvania  R.  Co.  v. 

202    Fed.    887;    121    C.    C.    A.    245;  Sheeley,  221   Fed.   901. 
Illinois  Central  R.  Co.  v.  Porter,  207  Under   this    rule    if    the   employee 

Fed.  311;  125  C.  C.  A.  55.  has  suffered  dainapos  to  the  amount 

'^  Norfolk,  etc.,  R.  Co.  v.  Earnest,  of  $4,000,  but  he  was  guilty  of  one- 

229  U.  S.  114;  33  Sup.  Ct.  G54;  57  fourth   of   the   entire   negligence   in- 


DAMAGES. 


255 


in  any  degree,  no  negligence  on  the  part  of  the  employee, 
however  great,  will  defeat  a  recovery  by  liim/^  But  if  the 
injury  is  not  caused  by  the  negligence  of  the  carrier,  there 
can  be  no  recovery."  It  must  be  remembered  that  the 
statute  expressly  provides  that  contributory  negligence  does 
not  diminish  the  damages  where  the  failure  of  the  carrier 
to  comply  with  the  Federal  Safety  Appliance  Acts  (or 
Hours  of  Service  Act)  contributed  to  the  injury.^^ 


volved,  he  would  be  entitled  to 
recover  $3,000.  Pennsylvania  R. 
Co.  V.  Goughnous,  208  Fed.  961; 
126  C.  C.  A.  39.  See  also  Nashville, 
C.  &  St.  L.  Ry.  Co.  V.  Henry,  158 
Ky.  88;  164  S.  W.  310;  Nashville, 
C.  &  St.  L.  Ry.  Co.  V.  Banks,  156 
Ky.  609;  161  S.  W.  554;  Grand  Trunk 
Western  Ry.  Co.  v.  Lindsay,  233 
U.  S.  42;  34  Sup.  Ct.  581 ;  58  L.  Ed.  — . 

'•'  Pennsylvania  Co.  v.  Cole,  214 
Fed.  948;  White  v.  Central  Vermont 
Ry.  Co.  87  Vt.  330;  89  Atl.  618; 
Seaboard  Air  Line  Ry.  Co.  v.  Moore, 
193  Fed.  1022;  113  C.  C.  A.  668, 
affirmed  228  U.  S.  433;  33  Sup.  Ct. 
580;  57  L.  Ed.  907;  New  York  C. 
&  St.  L.  R.  Co.  V.  Niebel,  214  Fed. 
952 

»*  Ellis  V.  Louisville,  H.  &  St.  L. 
Ry.  Co.  155  Ky.  745;  160  S.  W.  512; 
Louisville  &  N.  R.  Co.  v.  Wene, 
202  Fed.  887;  121  C.  C.  A.  245; 
Paulkey  v.  Atchison,  T.  &  S.  F.  Ry. 
Co.  (Mo.)  168  S.  W.  274;  Cincinnati, 
N.  O.  &  T.  P.  Ry.  Co.  v.  Swann, 
160  Ky.  458;  169  S.  W.  886;  Miller 
V.  Michigan  Central  R.  Co.  (Mich.) 
152  N.  W.  235;  Nelson  v.  Northern 
Pac.  Ry.  Co.  (Mont.)  148  Pac.  238; 
Day  V.  Kelly  (Mont.)  146  Pac.  930; 
Smith  V.  St.  Louis  &  S.  F.  R.  Co. 
(Kas.)  148  Pac.  759:  Nelson  v.  North- 
ern P.  Ry.  Co.  (Mont.)  148  Pac.  388. 

'5  Grand  Trunk  Western  Ry.  Co. 
V.  Lindsay,  233  U.  S.  42;  34  Sup.  Ct. 
581;  58  L.  Ed.  828,  affirming  201  Fed. 
836;  120  C.  C.  A.   166. 

"Contributory  negligence  on  the 
part  of  the  employee  does  not  operate 
even  to  diminish  the  recovery  where 
the  injury  has  been  occasioned  in 
part  by  the  failure  of  the  carrier  to 
comply  with  the  exactions  of  an  Act 
of  Congress  created  to  promote  the 
safety  of  employees.  In  that  con- 
tingency the  statute  abolishes  the 
defense    of    contributory    negligence. 


not  only  as  a  bar  to  a  recovery,  but 
for   all   purposes."      Ibid. 

For  instructions  to  the  jury  on 
this  point,  see  Walsh  v.  Lake  Shore 
&  M.  S.  Ry.  Co.  (Mich.)  151  N.  W. 
754. 

It  is  error  to  tell  the  jury  that  if 
deceased  was  contributarily  negligent 
the  damages  should  be  reduced  in 
proportion  to  the  negligence  attribut- 
able to  him.  Louisville  &  N.  R.  Co. 
v.  Henderson  (Ky.)   173  S.  W.  343. 

That  contributory  negligence  is  no 
bar  to  a  recovery  of  some  damages. 
See  Neil  v.  Idaho  &  W.  N.  R.  Co. 
22  Idaho  74;  125  Pac.  331;  Fish  v. 
Chicago,  R.  I.  &  P.  Ry.  Co.  (Mo.) 
172  S.  W.  340;  Paulkey  v.  Atchison, 
T.  &  S.  F.  Ry.  Co.  (Tex.  Civ.  App.) 
168  S.  W.  274;  Hardwick  v.  Wabash 
R.  Co.  181  Mo.  App.  156;  168  S.  W. 
328;  New  York  C.  &  St.  L.  R.  Co. 
V.  Niebel,  214  Fed.  952;  Pennsylvania 
Co.  V.  Cole,  214  Fed.  948;  Grand 
Trunk  Western  Ry.  Co.  v.  Lindsay, 
201  Fed.  836;  120  C.  C.  A.  166; 
Thornbro  v.  Kansas  City,  M.  &  0. 
Ry.  Co.  91  Kan.  684;  139  Pac.  410; 
Kenney  v.  Seaboard  Air  Line  Ry.  Co. 
165  N.  C.  99;  80  S.  E.  1078;  White  v. 
Central  Vt.  Ry.  Co.  87  Vt.  330;  89 
Atl.  618;  Stephensville,  N.  &  S.  T. 
Ry.  Co.  V.  Shelton  (Tex.  Civ.  App.) 
163  S.  W.  1034;  Nashville,  C.  &  St. 
L.  Ry.  v.  Henry,  158  Ky.  88;  164  S. 
W.  310;  Nashville,  C.  &  St.  L.  R. 
Co.  V.  Banks,  156  Ky.  609;  161  S. 
W.  554;  Carpenter  v.  Kansas  City 
So.  Ry.  Co.  (Mo.  App.)  175  S.  W.  234; 
Cross  V.  Chicago,  B.  &  Q.  R.  Co. 
(Mo.  App.)  177  S.  W.  1127;  Hackney 
V.  Missouri,  K.  &  T.  Ry.  Co.  (Kan.) 
149  Pac.  421;  Louisville  &  N.  R.  Co. 
V.  Fleming  (Ala.)  69  So.  125. 

To  reduce  his  damages,  the  em- 
ployee's contributory  negligence 
"must  directly  and  proximately  con- 
tribute to  the  injury."    Illinois  Cent. 


256 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


§  178a.  Instructions  on  contributory  negligence  reducing 
damages  otherwise  recoverable. — An  instruction  to  the  jury 
that  they  should  "diminish  the  damages,  if  any,  awarded 
the  plaintiff,  in  proportion  to  the  amount  of  negligence  at- 
tributable to  him,  so  that  he  will  not  recover  full  damages, 
but  only  a  proportional  part,  bearing  the  same  relation  to 
the  full  amount  as  the  negligence  attributable  to  the  de- 
fendant bears  to  the  entire  negligence  attributable  to  both" 
is  a  correct  statement  of  the  law.^^  An  instruction  that  if  the 
plaintiff  was  guilty  of  contributory  negligence  the  damages 
must  be  diminished  in  proportion  to  the  amount  of  negli- 
ligence  attributable  to  him,  is  not  objectionable  because 
the  court  further  said  that  such  negligence  "goes  by  way  of 
diminution  of  damages,"  since  this  statement  must  not  be 
regarded  as  a  qualifying  one,  but  merely  as  intended  to 
repeat  the  statutory  requirement  in  somewhat  different 
terms,^^  In  an  action  for  the  death  of  a  switchman  by  being 
jarred  from  the  pilot  of  a  road  engine  being  used  for  switch- 
ing purposes,  it  was  held  that  a  requested  instruction  that 


R.  Co.  V.  Porter,  207  Fed.  311;  125 
C.  C.  A.  55. 

If  the  plaintiff  is  without  fault,  he 
is  entitled  to  full  damages.  Carpenter 
V.  Kansas  City  Southern  Ry.  Co. 
(Mo.  App.)  175  S.  W.  234. 

"Under  this  act,  no  degree  of 
negligence  on  the  part  of  the  plain- 
tiff, however  gross  or  proximate,  can, 
as  a  matter  of  law,  bar  a  recovery." 
Pennsylvania  Co.  v.  Cole,  214  Fed. 
948. 

"To  say  that  plaintiff's  negligence 
equals  the  combined  negligence  of 
plaintiff  and  defendant  is  impossible." 
Pennsylvania  Co.  v.  Cole,  214  Fed. 
948. 

"It  is  only  when  plaintiff's  act  is  the 
sole  cause — when  the  defendant's  act 
is  no  part  of  the  causation — that 
defendant  is  free  from  liability  under 
the  act."  Grand  Trunk  Western 
Ry.  V.  Lindsay,  201  Fed.  837,  844; 
120  C.  C.  A.  1(56,  174,  affirmed  233 
U.  8.  42;  34  Sup.  Ct.  581;  58  L.  Ed. 
828;  Louisville  &  N.  Ry.  Co.  v.  Lank- 
ford,  20f»  Fed.  321;  120  C.  C.  A.  247. 

A  request  that  a  finding  of  con- 
tributory negligence  would  result  in 
a  verdict  for  the  defendant  must  be 
denied.  Chicago,  G.  W.  R.  Co.  v. 
iMcCormick,  200  P^ed.  375;  118  C.  C. 
A.  527. 


"Under  the  rule  of  comparative 
neghgence,  the  jury  is  entitled  to 
consider  all  the  circumstances  which 
characterize  the  negligence  of  either 
party  and  which  tend  to  fix  the 
quantity  and  quality  of  that  negli- 
gence in  its  relation  to  the  sum  total  of 
the  negligence  of  both  parties.  Even 
though  the  negligence  of  either  party 
clearly  appears,  all  circumstances  of 
aggravation  or  of  mitigation  must 
be  considered."  New  York  C.  &  St. 
L.  R.  Co.  V.  Niebel,  214  Fed.  952. 

The  jury  must  consider  the  plain- 
tiff's negligence  when  fixing  the  dam- 
ages. Hackney  v.  Missouri,  K.  & 
T.  Ry.  Co.  (Kan.)  149  Pac.  421,  and 
that  question  must  be  submitted  to 
it.  Norfolk  Southern  R.  Co.  v. 
Friebee,  35  Sup.  Ct.  781,  affirming  167 
N.  C.  290;  83  S.  E.  360;  first  appeal 
163  N.  C.  351;  79  S.  E.  685;  52  L.  R. 
A.  (N.  S.)  1114. 

>6  Cincinnati,  N.  0.  &  T.  P.  Ry. 
Co.  v.  Goode  (Ky.)  173  S.  W.  329; 
Louisville  &  N.  R.  Co.  v.  Holloway 
(Ky.)  133  S.  W.  343. 

"Norfolk  &  W.  Ry.  Co.  v.  Ear- 
nest, 229  U.  S.  114;  33  Sup.  Ct.  654; 
57  L.  Ed.  651.  For  an  instruction 
approved,  see  St.  Louis,  I.  M.  &  So. 
Rv.  Co.  v.  Rodgers  (Ark.)  176  S.  W. 
696. 


DAMAGES.  257 

the  deceased's  act  in  riding  on  the  pilot  with  knowledge  of 
the  apparent  and  obvious  danger,  and  without  necessity, 
should  imperatively  reduce  the  damages  to  a  nominal  sum 
was  properly  refused,  because,  under  the  statute  the  dam- 
ages recoverable  in  case  of  an  employee's  negligence  bear 
the  same  relation  to  the  full  amount  as  the  negligence  at- 
tributable to  the  defendant  bear  to  the  entire  negligence 
attributable  to  both.^^  It  is  error  to  instruct  the  jury  that 
if  the  employee  was  guilty  of  negligence  which  contributed 
to  his  injuries,  they  must  diminish  the  damages  in  propor- 
tion to  the  amount  of  negligence  attributable  to  him  in 
producing  the  injury.^ ^  An  instruction  to  diminish  the 
damages  for  contributor}^  negligence,  "but  for  which  the 
plaintiff  would  not  have  been  injured,"  is  too  broad,  and 
is  erroneous ;  for  such  negligence  merely  diminishes  the 
damages.  So  an  instruction  to  diminish  the  damages,  if 
any,  attributable  to  the  plaintiff  is  erroneous,  the  proper 
rule  being  that  the  plaintiff  may  recover  a  proportional 
amount  bearing  the  same  relation  to  the  full  amount  as  its 
negligence  bears  to  the  entire  negligence  of  both.-"  The 
following  instruction  has  been  approved:  "If  the  jury 
should  find  for  plaintiff,  they  should  fix  the  damages  at  such 
sum  as  would  reasonably  compensate  the  dependent  mem- 
bers of  the  family  of  said  Kelley,  if  any  there  be,  for  the 
pecuniary  loss,  if  any  shown  by  the  evidence  to  have  been 
sustained  by  them  because  of  said  Kelley 's  injury  and  death. 
In  fixing  said  amount  the  jury  are  authorized  to  take  into 
consideration  the  evidence  showing  the  decedent's  age, 
habits,  business  ability,  earning  capacity,  probable  duration 
of  life,  and  also  the  pecuniary  loss,  if  any,  which  the  jury 
may  find  from  the  evidence  that  the  dependent  members  of 
his  family,  if  any,  have  sustained  because  of  being  deprived 
of  such  maintenance  or  support  or  other  pecuniary  advan- 
tages, if  any,  which  the  jury  may  believe  from  the  evidence 

18  Louisville  &  N.  R.  v.  Lankford,  &   N.   R.   Co.   v.   Stewart,    157   Ky. 

209  Fed.  321;  126  C.  C.  A.  247.  C42;  161  S.  W.  557. 

's  Nashville,   C.   &   St.   L.   R.   Co.  ="  Nashville,  C.  &  St.  L.  Ry.  Co.  v. 

V.   Banks,   216  Fed.   554;   Louisville  Henry,  158  Ky.  88;  164  S.  W.  310. 


258  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

they  would  have  derived  from  his  life  thereafter."-^  In  the 
case  just  cited  it  was  held  that  the  jury  are  not  required  to 
calculate  -what  would  be  the  present  cash  value  of  the  aggre- 
gate amount  which  the  dependents  might  expect  to  receive, 
that  is,  the  amount  which,  if  placed  at  interest,  would  be 
wholly  consumed  by  the  time  the  dependency  ceased.^^* 

§  179.  Apportionment  of  damages  among  the  benefici- 
aries.— The  jury  should  consider  the  actual  pecuniary  loss 
of  each  beneficiary  where  the  pleadings  put  such  fact  in 
issue  and  there  is  evidence  to  support  the  issue.  "The 
statutory  action  of  an  administrator  is  not  for  the  equal 
benefit  of  each  of  the  surviving  relatives  for  whose  benefit 
the  suit  is  brought.  Though  the  judgment  may  be  for  a 
gross  amount,  the  interest  of  each  beneficiary  must  be 
measured  by  his  or  her  individual  pecuniary  loss.  That 
apportionment  is  for  the  jury  to  return.  This  will,  of 
course,  exclude  any  recovery  in  behalf  of  such  as  show  no 
pecuniary  loss."--  But  if  the  jury  returns  a  verdict  with- 
out specifying  the  amount  due  each  beneficiary,  there  is  no 
reversible  error  if  no  instruction  or  direction  to  apportion 
the  damages  is  asked  or  no  exception  taken  to  its  form.-^ 
"As  the  loss  recoverable  is  the  pecuniary  loss  only,  it  is 
apparent  that  a  child  shortly  to  become  of  age  could  not 
suffer  so  great  a  loss  in  the  father's  death  as  his  younger 
brothers  and  sisters,  the  verdict  should  respond  to  this  obvi- 
ous fact."-*  It  is  reversible  error  to  refuse  to  charge  the 
jury  that  the  interest  of  each  beneficiary  must  be  measured 


-'  Chesapeake    &    O.    Rv.    Co.    v.  -^  Hardwick    v.    Wabash    R.    Co. 

Kelley,  160  Ky.  29rD;  169  S.  W.  736.  ISl   Mo.  App.   156;   168  S.  W.  328; 

Instruction   approved.      Louisville   &  Copper  River  &   N.  W.   Ry.  Co.  v. 

X.R.  Co.  V.  Fleming  (Ala.)  69  So.  125.  Reeder.  211  Fed.  Ill;  127  C.  C.  A. 

^'' See  section  166,  note  4,  as  to  duty  648;    Southern    Ry.    Co.    v.    Smith, 

to  give  instructions  on  damages.  205   Fed.    360;    123   C.    C.   A.    488; 

"Gulf  C.  &  S.  F.  R.  Co.  V.  Mc-  Yazoo  &  M.  V.   R.   Co.   v.  Wright, 

Ginnis,  228  U.  S.   173;  33  Sup.  Ct.  207  Fed.  281;  125  C.  C.  A.  25;  March 

426;  57  L.  Ed.  785;  St.  Louis,  etc.,  R.  v.  Walker,  48  Tex.  377;  Missouri,  K. 

Co.  v.  Geer  (Tex.  Civ.  App.)  149  S.  &  T.  Ry.  Co.  v.  Evans,  16  Tex.  Civ. 

W.  1178;  Louisville  &  N.  R.  Co.  v.  App.  68;  41  S.  W.  80. 

Stewart,  1.56  Kv.  550;  161  S.  W.  557;  ■*  Hardwick  v.  Wabash  R.  Co.  181 

Louisville  &   N.   R.   Co.   v.  Stewart,  Mo.  App.  156;  168  S.  W.  328. 
157  Ky.  642;  174  S.  W.  744;  Louisville 
&  N.  R.  Co.  V.  Johnson,  161  Ky.  824; 
171  S.  W.  847;  Collins  v.  Pennsylvania 
R.  Co.  1  IS  .\.  Y.  Supp.  777. 


DAMAGES.  259 

by  his  or  her  individual-  pecnniary  loss,-^  but  not  error  to 
refuse  that  they  must  designate  the  loss  of  each  bene- 
ficiary.-^* 

§  180.  Distribution  of  proceeds  of  judgment. — Where 
the  verdict  designates  the  amount  each  beneficiary  is  en- 
titled to  recover,  then  the  proceeds  of  the  judgment  must 
be  distributed  accordingly,  and  the  judgment  rendered  on 
the  verdict  should  designate  the  amount  due  each  bene- 
ficiary.-**  But  if  there  be  no  division  of  the  amount  recov- 
ered designated,  and  no  way  to  ascertain  how  the  jury 
apportioned  the  damages,  then  such  amount  must  be  dis- 
tributed according  to  the  laws  of  the  state  wherein  the  ad- 
ministrator is  appointed.^^ 

§  181.  Survival  of  cause  of  action. — It  has  been  the  uni- 
versal rule  that  the  cause  of  action  an  employee  had  to 
recover  damages  for  his  injury  came  to  an  end  when  he 
died;  and  that  the  action  his  personal  representative  could 
maintain  for  the  benefit  of  certain  relatives  designated  by 
the  statute  was  an  entirely  new  action — an  action  different 
from  his — based  entirely  upon  different  considerations. 
Therefore  damages  he  might  have  recovered  for  pain  and 

^^  Collins  V.  Pennsylvania  R.  Co.  peake  &  Ohio  Ry.  Co.  v.  Kelley,  160 

163  App.  Div.  452;  148  N.  Y.  Supp.  Ky.  296;  169  S.  W.  736. 
777;  St.  Louis,  S.  &  T.  Ry.  Co.  v.  ^5*  Central  Vt.  R.  Co.  v.  White,  35 

Johnston,  78  Tex.  536;  15  S.  W.  104.  Sup.  Ct.  SG5,  affirming  87  Vt.  330; 

"If  the  jury  find  for  the  plaintiff  89  Atl.  618;  St.  Louis,  I.  M.  &  So. 

they  wiU  find  a  gross  sum  for  the  Ry.  Co.  v.  Rodgers  (Ark.)  176  S.  W. 

plaintiff  against  the  defendant  which  696;  Norfolk  &  W.  R.  Co.  v.  Stevens, 

must  not  exceed  the  probable  earn-  97  Va.  631;  34  S.  E.  525;  46  L.  R.  A. 

ing  of  Matt.  Kelley.    The  gross  sum  367;  International  &  G.  N.  R.  Co.  v. 

to  be  found  for  plaintiff,  if  the  jury  Lehman  (Tex.  Civ.  App.)  72  S.  W. 

find   for   the   plaintiff,    must   be   the  619. 

aggregate  of  the  sum  which  the  jury  -*  There    is    no    decision    on    this 

may  find  from  the  evidence  and  fix  point  that  I  know  of,  but  it  is  the 

as  the  pecuniary  loss  as  above  de-  logical  deduction  from  the  language 

scribed,  which  each  dependent  mem-  used  in  Gulf,  C.  &  S.  F.  R.  Co.  v. 

her   of   Matt.    Kelley's   family   may  McGinnis,  228  U.  S.  173;  33  Sup.  Ct. 

have  sustained  by  his  death,  stating  426;  57  L.  Ed.  785,  reversing  (Tex. 

the    amount    awarded    his    widow,  Civ.  App.)  147  S.  W.  1188;  Taylor  v. 

Addie  Kelley,  Matt.  L.  Kelley,  Ruth  Taylor,  232  U.  S.  363;  34  Sup.  Ct. 

Kelley,  Thomas  J.  Kelley  and  Richard  350;  58  L.  Ed.  638.     See  case  below, 

Kelley,   if  any  for  them,  or  any  of  204  N.  Y.  135;    97  N.  E.    (N.   Y.) 

them,  but  such   findings  in  the  ag-  502;    Am.  Cas.    1913   D,    276;     144 

gregate  must  not  exceed  $32,000.  App.  Div.  634;  128  N.  Y.  Supp.  378. 
In  other  words,  if  the  jury  find  for  -^  Pennsylvania  R.  Co.  v.  Long,  94 

the  plaintiff,  you  must,  in  your  ver-  Ind.    250;    Bradford   v.    Downs,    126 

diet,  state  also  the  respective  amounts  Pa.  St.  622;   17  Atl.  884;  Louisville 

awarded  each  dependent  member  of  etc.,  R.  Co.  v.  Berry,  2  Ind.  App.  427; 

decedent's  family."    Given  in  Chesa-  28  N.  E.  714. 


260  FEDERAL,    EMPLOYERS'    LIABILITY    ACT. 

suffering,  and  the  expense  occasioned  by  his  injuries,  were 
not  recoverable  for  the  benefit  of  the  beneficiaries  named 
in  the  statute.-^  But  in  1910  Congress  amended  the  original 
Act  of  1908  by  adding  an  additional  section  to  it,  known  as 
section  9,  and  which  is  as  follows:  "Any  right  of  action 
given  by  this  act  to  a  person  suffering  injury  shall  survive 
to  his  or  her  personal  representative,  for  the  benefit  of  the 
surviving  widow  or  husband  and  children  of  such  employee, 
and  if  none,  then  of  such  employee's  parents;  and,  if  none, 
then  of  the  next  of  kin  dependent  upon  such  employee,  but 
in  such  cases  there  shall  be  only  one  recovery  for  the  same 
injury."  This  section  does  not  destroy  either  of  the  two 
causes  of  action  given  by  the  statute  to  which  it  is  added 
as  an  amendment,  but  provides  that  one  (and  only  one) 
recovery  may  be  had  upon  the  two  independent  causes  of 
action  combined  in  one,  and  in  addition  to  the  damages  re- 
coverable in  case  of  death  for  the  pecuniary  loss  inflicted, 
the  administrator  may  now  recover  a  further  sum  upon  the 
action  given  to  the  person  injured  and  which  now  survives. 
Consequently  the  administrator  may  now  recover  for  the 
pain  and  suffering  sustained  by  the  deceased,  as  well  as  the 
pecuniary  loss  or  injury  resulting  to  the  beneficiaries  from 
his  death.  "We  are  of  the  opinion,"  said  Judge  Ross,  "that 
the  plain  meaning  of  these  statutory  provisions  is  that,  when 
one  receives  an  injury  in  the  employment  of  a  railroad  com- 
pany under  such  circumstances  as  entitle  him  or  her,  as  the 
case  may  be,  by  virtue  of  the  statute,  to  recover  from  the 
company  damages  therefor,  and  that  such  injury  results  in 
the  death  of  the  injured  person,  damages  resulting  from  the 
personal  suffering,  and  from  such  death,  not  only  may  be 
recovered  by  the  personal  representative  of  the  deceased  in 
one  action,  but  must  be  recovered  in  one  action  only,  if  at 
all,  for  the  benefit  of  those  specified  in  the  statute."-^    But 

^'MinhiKan    Central    T^.    Co.    v.  227  U.  S.  145;  33  Sup.  Ct.  224;  57 

Vrooland,  227  U.  S.  .W;  :«  Sup.  Ct.  L.  Ed.  450. 

102;  57   L.   Ed.   417;   New  York,  C.  =»  Northern  Pac.  Ry.  Co.  v.  Mnerkl, 

&  St.  L.  l{y.  Co.  V.  Niebel,  214  I-ed.  198  Fed.   1;   117  C.  C.  A.   237;   St. 

952;  American  R.  Co.  v.  Didrickscn,  Louis  &  S.  F.  R.  Co.  v.  Conarty,  196 


DAMAGES. 


261 


if  the  death  be  instantaneous  there  is  no  survival  of  an  ac- 
tion for  pain  and  suffering;  and  if  the  complaint  does  not 
show  a  reasonable  expectancy  of  pecuniary  assistance  in 
favor  of  the  beneficiaries,  there  can  be  no  recovery.^"'  But  if 
the  deceased  survived  his  injury  an  appreciable  length  of 
time,  there  can  be  a  recovery  for  the  pain  and  suffering  he 
has  endured ;  and  the  length  of  time  he  survives  after  his 
injury  is  material  in  estimating  the  damages  recoverable.^^ 
The  question  has  now  been  put  at  rest  by  a  recent  decision 
of  the  Supreme  Court.  Speaking  of  the  cause  of  action 
given  to  the  injured  employee  and  the  other  given  to  his 
administrator  for  the  benefit  of  his  relatives,  the  Court  said : 
"Although  originating  in  the  same  wrongful  act  or  neglect, 
the  two  claims  are  quite  distinct,  no  part  of  either  being  em- 
braced in  the  other.  One  is  for  the  wrong  to  the  injured 
person,  and  is  confined  to  his  personal  loss  and  suffering 


Ark.  421;  155  S.  W.  93;  Cain  v. 
Southern  R.  Co.  199  Fed.  211.  See 
Michigan  Central  R.  Co.  v.  Vreeland, 
227  U.  S.  59;  33  Sup.  Ct.  192;  57 
L.  Ed.  417;  St.  Louis,  etc.,  Ry.  Co. 
V.  Hesterly,  228  U.  S.  702;  33  Sup. 
Ct.  703;  57  L.  Ed.  1031. 

soMoffitt  V.  Baltimore  &  0.  R. 
Co.  220  Fed.  39.  (In  this  last  case 
it  is  said  that  Northern  Pacific  Ry. 
Co.  V.  Maerkl,  198  Fed.  1;  117  C.  C. 
A.  237,  is  a  doubtful  authority.) 
Norfolk  &  W.  Ry.  Co.  v.  Holbrook 
(U.  S.)  35  Sup.  Ct.  143,  reversing  215 
Fed.  687;  (C.  C.  A.);  Carolina,  C.  & 
O.  R.  Co.  V.  Shewalter,  128  Tenn. 
363;  161  S.  W.  1136. 

That  no  damages  can  be  recovered 
when  there  is  an  instantaneous 
death  of  the  employee,  notwith- 
standing the  statutory  survival  of 
his  cause  of  action,  is  decided  in  the 
following  cases,  based  on  state 
statutes:  The  Corsair,  145  U.  S.  335; 
12  Sup.  Ct.  949;  36  L.  Ed.  727; 
Kearney  v.  Boston  &  W.  R.  Co. 
9  Cush.  108;  Hollenbeck  v.  Berk- 
shire R.  Co.  9  Cush.  478;  Kennedy 
v.  Standard  Sugar  &  Refinerv,  125 
Mass.  90;  28  Am.  Rep.  214;  Moran 
v.  Rollings,  125  Mass.  93;  Mulchaey 


v.  Washburn  Car  Co.  145  Mass.  281; 
14  N.  E.  106;  1  Am.  St.  458;  St.  Louis, 
I.  M.  &  S.  Rv.  Co.  V.  Dawson,  68 
Ark.  1;  56  S.  W.  46;  St.  Louis,  I. 
M.  &  S.  Ry.  Co.  V.  Stamps,  84  Ark. 
241;  104  S.  W.  1114;  I.  C.  R.  Co.  v. 
Pendergrass,  69  Miss.  425;  12  So. 
954;  Vicksburg,  etc.,  R.  Co.  v. 
Phillips,  64  Miss.  693;  2  So.  537; 
Dillon  V.  Great  Northern  R.  Co. 
38  Mont.  485;  100  Pac.  960;  Belding 
V.  Black  Hills  R.  Co.  3  S.  D.  369; 
53  N.  W.  750;  Hansford  v.  Payne, 
11  Bush.  380;  Newport  News,  etc.. 
R.  Co.  V.  Dentzel,  91  Ky.  42;  14 
S.  W.  958;  Sweetland  v.  Chicago, 
etc.,  R.  Co.  117  Mich.  329;  75  N.  W. 
1066;  43  L.  R.  A.  568;  Dolson  v. 
Lake  .Shore,  etc.,  R.  Co.  128  Mich. 
444;  87  N.  W.  629;  Kyes  v.  Vallev 
Telephone  Co.  132  Mich.  281;  93 
N.  W.  623;  Oliver  v.  Houghton  Co. 
St.  Rv.  Co.  134  Mich.  367;  96  N.  W. 
434;  104  Am.  St.  607;  3  Ann.  Cas.  53. 
"  Brown  v.  Chicago  &  N.  W.  Ry. 
Co.  102  Wis.  137;  77  N.  W.  748;  78 
N.  W.  771:  44  L.  R.  A.  579;  Leh- 
mann  v.  Folwell,  95  Wis.  185;  70 
N.  W.  170;  37  L.  R.  A.  333;  60  Am. 
St.  111. 


262  FEDERAL    EMPLOYERS'    LIABILITY   ACT. 

before  he  died,  while  the  other  is  for  the  wrong  to  the  bene- 
ficiaries, and  is  confined  to  their  pecuniary  loss  through  his 
death.  One  begins  where  the  other  ends,  and  a  recovery 
upon  both  in  the  same  action  is  not  a  double  recovery  for  a 
single  wrong,  but  a  single  recovery  for  a  double  wrong.  "^^ 
In  this  case  the  Court  also  said  that  "for  such  pain  and 
suffering  as  are  substantially  contemporaneous  with  death, 
or  mere  incidents  to  it,  as  also  the  short  periods  of  insensi- 
bility which  sometimes  intervene  between  fatal  injuries  and 
death,  afford  no  basis  for  a  separate  estimation  or  award  of 
damages  under  statutes  like  that  which  is  controlling  here." 
In  discussing  the  statute  the  court  passes  by  the  question 
what  would  be  the  effect  if  the  injured  employee  were  to  re- 
cover damages  for  his  injuries  and  then  die  from  them,  so 
far  as  thereafter  his  administrator  might  bring  an  action  to 
recover  for  the  beneficiaries  such  pecuniary  loss  as  they  had 
suffered. 

§  182.  Damages  recoverable  when  there  is  a  survival  of 
deceased's  right  of  action. — It  becomes  a  question  of  great 
importance  concerning  the  amount  of  damages  the  admin- 
istrator may  recover  when  the  deceased's  right  of  action 
has  survived  and  passed  to  his  administrator.  Does  the 
rule  of  pecuniary  damages  alone  control?  or  is  that  a  rule  of 
the  past — a  rule  rendered  obsolete  by  the  amendment  of 
1910?  Are  the  decisions  of  the  Federal  Supreme  Court  on 
the  subject  of  pecuniary  damages  no  longer  controlling? 
Those  decisions  no  longer  correctly  interpret  the  statute, 
except  when  death  is  instantaneous,  or  immediately  follows 
the  injury  without  an  appreciable  interval  of  time  between 

'2  St.  Louis,  I.  M.  &  So.  Ry.  Co.  v.  obscure  statements  on  this  point  in 

Craft,  237  U.  S.  G48;  35  Sup.  Ct.  Taylor  v.  Taylor,  232  U.  S.  363;  34 

704,  affirming  (Ark.)  171  S.  W.  1185.  Sup.  Ct.  350;  58  L.  Ed.  638,  reversing 

The  court  quotes  approvingly  North-  204  N.  Y.  135;  97  N.  E.  502;  Ann. 

em  P.  R.  Co.  v.  Maerkl,  198  Fed.  1;  Cas.    1913    D,    276,    which   reversed 

117  C.  C.  A.  237;  Kansas  City  So.  Ry.  144  App.  Div.  634;  128  N.  Y.  Supp. 

Co.  v.  I^eslie,  35  Sup.  Ct.  844,  revers-  378.    A  refusal  to  require  the  jury  to 

jng   112   Ark.   335;   167   S.   W.    183;  specify    how    much    they    allow  for 

Lfjuisville  &  N.   R.  Co.  v.  Fleming  suffering  and  how  much  for  pecuniary 

(Ala.)   69   So.   125.  loss  is  not  error.    St.  Louis,  I.  M.  &  S. 

The    Craft    case    clears    up    some  R.  Co.  (Ark.)  176  S.  W.  696. 


DAMAGES.  263 

the  injury  and  death.  In  one  case,  quoting  the  amendment 
of  1910,  the  court  told  the  jury  that  it  meant  "that  all  the 
rights  the  employee  would  have  had  for  the  injury  re- 
ceived will  in  the  case  of  his  death,  go  to  his  personal  rep- 
resentative, for  the  benefit  of  his  widow  and  children,  if 
there  be  any ;  and  if  none,  then  for  the  benefit  of  his  parents. 
In  this  case,  if  you  shall  find  that  plaintiff  is  entitled  to 
recover,  the  element  of  damages  that  would  have  survived 
to  Robert  Shewalter  [the  deceased  employee]  had  death  not 
resulted  from  his  injuries,  will  survive  for  the  benefit  of  his 
father,  he  having  left  no  widow,  child  or  mother.  I  there- 
fore instruct  you  that,  in  an  action  for  personal  injuries,  the 
plaintiff  is  entitled  to  recover  compensation,  so  far  as  it  is 
susceptible  of  an  estimate  in  money,  for  the  loss  and  damage 
caused  to  him  by  defendant's  negligence,  and  a  recoverable 
sum  for  the  pain  and  suffering,  if  any  be  shown ;  and  also  a 
fair  recompense  for  the  loss  of  what  he  would  have  otherwise 
earned  at  his  trade  or  profession,  and  has  been  deprived  of 
the  capacity  of  earning,  by  the  wrongful  act  of  the  defend- 
ant, if  such  be  shown.  And  this  will  be  the  measure  of  dam- 
ages in  this  case,  if  you  shall  find  for  the  plaintiff.  In  other 
words,  the  pecuniary  value  of  the  life  of  the  deceased,  Rob- 
ert Shewalter,  is  to  be  determined  if  you  find  for  the  plaint- 
iff, upon  a  consideration  of  his  expectancy  of  life,  his  age, 
condition  of  health  and  strength,  capacity  for  labor,  and  for 
earning  money,  through  skill  in  trade,  occupation  or  busi- 
ness, and  his  personal  habits  as  to  sobriety  and  industry,  all 
modified,  however,  by  the  fact  that  the  expectation  of  life 
is  at  most  only  a  probability  based  upon  experience,  and  also 
by  the  fact  that  the  earnings  of  this  same  individual  are  not 
always  uniform.  All  these  elements  are  to  be  taken  into 
consideration  by  you,  and,  after  weighing  them  all,  you 
should  assess  such  amount  of  damages  as  may  be  sufficient 
to  compensate  for  the  loss  of  the  life  whose  value  you  are 
attempting  to  estimate.  "^^     It  is  now  clear  that  for  all  in- 

'^  As  there  was  an  instantaneous  "The  charge  of  the  circuit  judge  was 
death,  this  instruction,  because  of  correct,  under  the  statute  of  Ten- 
that  fact  alone,  was  held  erroneous.       nessee  [which  is  the  question  of  sur- 


264  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

juries  resulting  in  death,  brought  since  the  amendment  of 
1910  was  enacted,  the  personal  representatives  may  recover 
in  the  same  action  for  the  pain  and  suffering  of  the  deceased 
and  for  the  pecuniary  loss  to  the  beneficiaries.^*  This,  how- 
ever, does  not  dispose  of  the  question  whether  the  admin- 
istrator can  recover  for  the  benefit  of  those  dependent  upon 
the  deceased  the  amount  spent  for  the  hire  of  doctors,  sur- 
geons, and  nurses.  The  right  of  action  is  given  to  an 
employee  "suffering  injury  while  he  is  employed"  by  a 
carrier  in  interstate  commerce,  and  the  damages  recoverable 
under  the  act  is  in  no  wise  limited  to  those  arising  solely 
from  the  injury  without  respect  to  the  necessary  cost  of 
sickness  those  produced.  No  doubt  the  employee  if  he  sued 
could  recover  these  costs  and  expenses;  and  we  see  no  rea- 
son why  the  administrator  may  not  recover  them  when  he 
sues  for  the  benefit  of  the  deceased's  dependents  upon  him, 
as  they  reduce  the  estate  such  dependents  would  probably 
otherwise  inherit  (especially  in  case  of  the  widow  and  his 
children),  because  of  the  declaration  of  the  statute.  "That 
any  right  of  action  given  by  this  act  to  a  person  suffering 
injury  shall  survive  to  his  or  her  personal  representative, 
for  the  benefit"  of  designated  persons.^^ 

vival  alone  and  similar  to  the  Federal  171  S.  W.  1185)  lends  color  to  the 
statute],  and  is  in  accord  with  the  statement  in  the  text  when  it  speaks 
law  laid  down  in  Davidson-Benedict  of  the  employee's  right  of  action 
Co.  V.  Severson,  109  Tenn.  572;  72  being  "confined  to  his  personal  loss 
S.  W.  967,  and  cases  there  reviewed."  and  suffering  before  he  died,"  and 
Carolina,  C.  &  O.  llv.  v.  Shewalter  then  holds  that  this  cause  of  action 
12S  Tenn.  3G3;  161  S.  W.  1136.  For  passes  at  his  death  to  his  adminis- 
instruction  disapproved,  see  Kansas  trators  for  the  benefit  of  his,  the  de- 
City  So.  R.  Co.  v.  Leslie,  35  Sup.  Ct.  ceased's  relatives. 
844,  reversing  112  Ark.  305;  1G7  S.  Granting  new  trial  as  to  the  amount 
W.  S3.  of  damages  only  may  be  done.    Nor. 

'*  Northern     Pacific    Ry.    Co.    v.  folk  So.  R.  Co.  v.  Ferebee,  35  Sup- 

Maerkl,  198  Fed.  1;  117  C.  C.  A.  237;  Ct.  781,  affirming  167  N.  C.  290;  83 

St.  Louis  At  S.  F.  R.  Co.  v.  Conarty,  S.  E.  360;  first  appeal  163  N.  C.  351; 

96  Ark.  421;  155S.  W.  93;  St.  Louis,  79  S.  E.  685;  52  L.  R.  A.  1114.    That 

L  M.  &   So.    Ry.  Co.  v.  Craft,  237  an  employee  may  recover  for  neces- 

U.  S.  — ;  35  Sup.  Ct.  704,  affirming  sary  medical  attendance  and  nurse's 

(Ark.)  171  S.  W.  1185;  Kansas  City  services,  see  Nashville,  C.  &  St.   L. 

So.  R.  Co.  V.  Leslie,  35  Sup.  Ct.  844,  Ry.  Co.  v.  Henry,  158  Ky.  88;  164 

reversing  112  Ark.  305;  167  S.  W.  83.  S.    W.    310.      No    funeral    expenses 

^'  The  n^cent  case  of  St.  Louis,  I.  can  be  recovered,  it  was  held  in  Collins 

M.  &  So.  Ry.  Co.  v.  Craft,  237  U.  S.  v.    Pennsylvania    R.    Co.    163    App. 

— ;  35  Sup.  Ct.  704  (aflirming  (Ark.)  Div.  452;  148  N.  Y.  Supp.  777. 


CHAPTER  X. 
RELEASE  OF  CLAIM  FOR  DAMAGES. 


SECTION  SECTION 

183.  Statute.  186.     Receipt    of    relief    money. 

184.  What  contracts  of  release  are       187.     Contract  for  future  release  not 

forbidden.  binding  on  beneficiaries. 

185.  Constitutionality  of  section  5.       188.     Release  by  beneficiary. 

§  183.  Statute. — Section  five  of  the  Federal  Liability 
Act  provides  "That  any  contract,  rule,  regulation,  or  device 
whatsoever,  the  purpose  and  intent  of  which  shall  be  to 
enable  any  common  carrier  to  exempt  itself  from  any  lia- 
bility created  by  this  act,  shall  to  that  extent  be  void ; 
Provided,  That  in  any  action  brought  against  any  such 
common  carrier  under  or  by  virtue  of  any  of  the  provisions 
of  this  act,  such  common  carrier  may  set  off  therein  any 
sum  it  has  contributed  or  paid  to  any  insurance,  or  relief 
benefit,  or  indemnity  that  may  have  been  paid  to  the  in- 
jured employee,  or  the  person  entitled  thereto,  on  account 
of  the  injury  or  death  for  which  said  action  was  brought." 

§  184.  What  contracts  of  release  are  forbidden. — This 
section  practically  applies  to  all  kinds  of  contracts  whereby 
the  carrier  is  relieved  from  liability.  Thus  it  had  been  the 
rule  of  several  courts  that  where  the  employee  joined  a  re- 
lief or  benefit  association  controlled  by  the  officers  of  the 
carrier,  and  the  employee  agreed  that  whatever  amount  he 
received  from  the  association  should  be  considered  as  in 
full  compensation  of  his  claim  for  injuries,  and  if  he  ac- 


265 


266  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

cepted  any  amount  from  it,  his  acceptance  should  operate  as 
a  release  of  the  carrier,  the  contract  was  valid,  notwith- 
standing statutes  declaring  all  contracts  made  by  carriers 
"with  their  employees,  or  rules  or  regulations  adopted  by 
any  such  corporations  releasing  them  from  liability  to  any 
employee  having  a  right  of  action  under  the  provisions"  of 
the  statutes  of  which  the  quotation  just  made  were  parts, 
were  "declared  null  and  void,"  where  the  employee  had  his 
choice  to  sue  or  accept  compensation  under  his  agreement. 
It  was  considered  that  the  acceptance  of  the  benefits 
after  the  injury  was  a  valid  release.^  But  the  Supreme 
Court  of  the  United  States  has  refused  to  accept  this  rule 
as  a  correct  interpretation  of  the  Federal  statute,  and  has 
held  that  the  carrier  was  only  released  to  the  extent  of  the 
money  actually  paid  by  the  relief  department  or  association. 
Not  only  did  it  thus  hold,  but  it  held  that  the  statute  applied 
to  contracts  of  release  in  force  at  the  time  it  w^as  adopted, 
and  that  the  statute  was  not  invalid  because  of  that  fact." 
"It  includes  every  variety  of  agreement  or  arrangement  of 
this  nature ;  and  stipulations,  contained  in  contracts  of  mem- 
bership in  relief  departments,  that  the  acceptance  of  bene- 
fits thereunder  shall  bar  recovery,  are  within  its  terms.  "^ 
In  order  to  avoid  the  effect  of  a  state  statute,  the  plaintiff 


'  Pittsburg,  etc.,  R.  Co.  v.  INIoore,  5.S9;  56  L.  Ed.  911,  affirming  36  App. 

152  Ind.  345;  53  N.  E.  290;  44  L.  R.  D.  C.  565;  Burnett  v.  Atlantic  Coast 

A.  638;  Johnson  v.  Philadelphia,  etc..  Line  R.  Co.  163  N.  C.  186;  79  S.  E. 

R.  Co.  163  Pa.  St.  127;  29  Atl.  854;  414;  Wagner  v.  Chicago  &  A.  R.  Co. 

Pittsburg,   etc.,   R.   Co.   v.   Cox,   55  (111.);    106    N.    E.    809;   Hogarty  v. 

Ohio  St.    497;   45  N.  E.  641;    35  L.  Philadelphia  &  R.  Ry.  Co.  245  Pa. 

R.  A.  507;   Donald  v.  Chicago,  etc.,  443;  91   Atl.  854;  McGuire  v.  Rail- 

R.  Co.  93  Iowa  284;  61  N.  W.  971;  road  Co.   131   Iowa  340;  108  N.  W. 

33  L.  R.  A.  492;  Fuller  v.  Baltimore,  902;  33  L.  R.  A.  (N.  S.)  706.  affirmed 

etc.,  Ass'n,  67  Md.  433;  10  Atl.  237;  219  U.  S.  549;  31  Sup.  Ct.  259;  55 

Chicago,  etc.,   R.  Co.  v.  Curter,  51  L.  Ed.  328;  Atlantic  Coast  Line  R. 

Neb.  442;    71    N.  W.  42;    State    v.  Co.   v.   Finn.    195   Fed.   685;   Oliver 

Baltimore,  etc.,  R.  Co.  36  Fed.  655.  v.  Northern  Pac.  R.  Co.  196  Fed.  432; 

2  Philadelphia,  B.  &  W.  R.  Co.  v.  Malloy  v.  Northern  Pac.  R.  Co.  151 

Schubert,  224  U.  S.  603;  32  Sup.  Ct.  Fed.   1019. 


RELEASE    OF    CLAIM    FOR    DAMAGES. 


267 


may  show  he  was  an  interstate  employee.^  A  provision  in 
a  contract  depriving  the  employee  of  any  benefits,  unless  any 
suit  brought  by  tlie  employee  against  tlie  carrier  for  negligent 
injury  should  be  dismissed,  is  void.*  A  contract  by  an  ex- 
press messenger  releasing  his  company  from  liability  for 
damages  is  void  where  the  messenger  is  also  a  servant  of  the 
railroad  company.^ 

§  185.  Constitutionality  of  section  five. — The  validity  of 
section  five  forbidding  contracts  of  release  has  been  decided 
by  the  Supreme  Court:  "If  Congress  possesses  the  power  to 
impose  this  liability,  which  we  here  hold  that  it  does,  it  also 
l)Ossesses  the  power  to  insure  its  efficacy  by  prohibiting  any 
contract,  rule,  regulation,  or  device  in  evasion  of  it."*'  In 
a  subsequent  case  the  Supreme  Court  again  held  that  this 
section  was  valid." 


'  Wagner  v.  Chicago  &  A.  R.  Co. 
265  111.  245;  106  N.  E.  S09. 

^  Baltimore  &  0.  R.  Co.  v.  Miller 
(Ind.)  107  N.  E.  545. 

As  to  exemption  of  a  railwaj'^  car- 
rier for  liability  to  a  porter  of  the 
Pullman  Company  where  the  latter 
is  released,  see  Robinson  v.  Balti- 
more &  O.  R.  Co.  40  App.  D.  C.  169. 

The  statute  applies  to  an  implied 
contract.  Rlalloy  v.  Northern  Pac. 
R.  Co.  151  Fed.  1019. 

5  Taylor  v.  Wells  Fargo  &  Co.  220 
Fed.  796. 

^  Second  Employers'  Liability 
Cases,  223  U.  S.  1 ;  32  Sup.  Ct.  169:  56 
L.  Ed.  327.  The  court  cites  Chicago, 
B.  &  Q.  R.  Co.  V.  McGuire,  219  U.  S. 
549;  31  Sup.  Ct.  259;  55  L.  Ed.  328; 
Atlantic  Coast  Line  R.  Co.  v.  River- 
side Mills,  219  U.  S.  186;  31  Sup.  Ct. 


164;  55  L.  Ed.  167;  31  L.  R.  A.  (N. 
S.)  7  and  Baltimore  &  O.  R.  Co.  v. 
Interstate  Commerce  Commission, 
221  U.  S.  612;  31  Sup.  Ct.  621;  55 
L.  Ed.  878. 

'Philadelphia  &  W.  R.  Co.  v. 
Schubert,  224  U.  S.  603;  32  Sup.  Ct. 
589;  56  L.  Ed.  911,  affirming  36  App. 
D.  C.  505.  See  also  El  Paso  &  N.  E. 
R.  Co.  V.  Gutierrez,  215  U.  S.  87;  30 
Sup.  Ct.  21;  54  L.  Ed.  106;  Hyde  v. 
Southern  R.  Co.  31  App.  D.  C.  466. 

The  Supreme  Court  of  Connecticut 
held  this  section  five  unconsti- 
tutional. Hoxie  V.  New  York,  N.  H. 
&  H.  R.  Co.  82  Conn.  352;  73  Atl. 
754,  but  the  case  was  reversed  in 
Second  Employers'  Liability  Cases, 
223  U.  S.  1;  32  Sup.  Ct.  169;  56  L. 
Ed.  327. 


268  FEDERAL,    EMPLOYERS'    LIABILITY    ACT. 

The  corresponding  section  of  the  Act  of  1906  is  very 
similar  to  that  of  the  present  Act  of  1908.  The  Supreme 
Court  of  the  District  of  Columbia  held  this  section  of  1906 
valid,  saying:  "The  right  to  make  all  recoverable  contracts 
is  a  property  right,  a  right  that  was  possessed  both  by  the 
defendant  and  by  the  plaintiff. 

"They  entered  into  this  contract,  and  under  it  the  de- 
fendant paid  the  benefits  and  the  plaintiff  accepted  them, 
and  we  will  assume  that  if  it  were  not  for  the  statute  itself 
the  acceptance  of  the  benefits  after  injury  would  constitute 
a  release  of  the  plaintiff's  damages;  but  the  Congress  has 
undertaken  to  say  that  such  a  contract  is  against  sound 
public  policy  and  shall  not  be  recognized.  Are  there  any 
grounds  upon  which  the  legislature  could  base  such  an 
enactment?  ]\Iore  than  once  in  its  brief  the  defendant 
shows  that  the  entering  into  of  this  contract  by  the  plain- 
tiff was  not  only  a  part  of  his  contract  of  employment,  but 
was  the  condition  of  his  being  employed  at  all,  and  although 
the  contract  itself  as  elaborately  set  forth  provides  for 
certain  preferences  to  be  given  those  employees  who  be- 
come members  of  the  relief  benefit  department,  the  de- 
fendant states,  on  page  15  of  its  brief,  that  all  employees 
of  the  defendant  are  required  to  become  members  of  the 
relief  department  as  a  condition  of  employment  by  that 
company.  That  is  to  say,  every  employee  is  required  to 
agree  upon  a  scale  of  benefits,  so  much  for  the  loss  of  an 
arm,  so  much  for  the  loss  of  an  eye,  so  much  for  the  loss  of 
a  life,  and  so  on,  which  sums,  if  accepted  by  the  employee 
or  his  representative,  after  the  injury  or  death  has  occurred, 
shall  constitute  a  bar  to  any  action  for  the  real  damages. 
It  is  now  said  that  no  harm  has  been  done  by  such  a  con- 
tract because  the  employee  retained  his  option  to  accept 
or  refuse  the  benefits  after  the  injury  has  been  received. 
During  the  oral  argument  the  court  asked  the  counsel  for 
the  defendant  why  the  company  exacted  of  its  employees 
such  an  agreement  in  advance  if  it  expected  to  rely  only 
upon  a  voluntary  acceptance  of  benefits  after  the  injury 


RELEASE    OF    CLAIM    FOR    DAMAGES.  269 

and  not  at  all  upon  the  previous  contract.  The  reply  was 
that  a  question  might  arise  as  to  the  condition  of  the  em- 
ployee at  the  time  the  benefits  were  accepted ;  that  it  might 
be  claimed  that  he  was  not  then  in  a  condition  to  make  an 
intelligent  decision,  and  in  such  a  case  the  fact  that  he  had 
agreed  upon  such  benefits  at  the  time  of  his  employment 
and  when  he  was  in  full  possession  of  all  his  faculties  would 
help  to  sustain  the  act  of  acceptance.  May  this  not  have 
been  one  of  the  reasons  for  the  action  taken  by  Congress? 
If  it  is  necessary  to  come  back  to  the  original  contract  in 
order  to  sustain  the  act  of  acceptance,  then  it  is  necessary 
to  come  back  to  a  contract  which  the  Congress  has  clearly 
declared  to  be  a  contract  made  between  parties  who  do  not 
stand  on  a  level,  and  one  party  to  which  is  presumably 
subject  to  the  undue  influence  of  the  other. 

"The  real  heart  of  the  question  is  whether  the  circum- 
stances and  situation  are  such  that  the  laAvmaking  body  has 
a  right  to  say  that  the  contract  is  made  between  parties, 
one  of  whom  has  presumably  an  undue  advantage  over  the 
other.  In  the  case  at  bar  the  plaintiff  employee  was  re- 
quired to  and  did  pay  the  sum  of  $2  per  month  into  the 
relief  department.  He  alleges  that  he  lost  his  arm,  or  a 
good  part  of  it,  through  the  negligence  of  the  defendant. 
For  that  loss  he  received,  according  to  the  plea  in  bar, 
*  *  *  $155  and  an  artificial  arm,  and  this  sum  was  due 
to  him  regardless  of  the  question  whether  the  company  was 
negligent  or  not.  On  the  other  hand,  of  course,  the  com- 
pany had  agreed  to  contribute  toward  the  fund  and  guaran- 
teed the  payment  regardless  of  the  question  of  its  own 
negligence.  The  defendant  has  argued  at  length  that  these 
relief  benefit  contracts  are  of  great  advantage  to  the  work- 
man, but  evidently  Congress  thought  otherwise,  and  if  this 
case  is  a  fair  example  of  the  returns  to  be  received  there 
will  probably  be  many  others  who  will  share  that  view. 

"The  fact  should  not  be  overlooked  that  although  the  em- 
ployee has  the  option  to  reject  the  relief  benefit  contract 
after  he  is  injured,  if  he  does  so  he  forfeits  what  he  has 


270  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

paid  under  it.  He  is  not  placed  back  where  he  was  at  the 
beginning  when  he  entered  into  the  contract  of  employment. 

"The  act,  however,  provides  that  while  the  amounts  paid 
as  relief  benefits  shall  not  bar  the  action  they  shall  be 
credited  to  the  defendant  so  far  as  they  were  contributed 
by  the  defendant,  thus  showing  that  Congress  took  note  of 
the  fact  that  the  employee  himself  had  contributed  on  his 
part  to  the  relief  benefit  by  the  deductions  from  his  wages, 
and  intended  that  these  shall  not  inure  to  the  benefit  of  the 
defendant. 

' '  The  Congress  probably  took  notice  of  the  fact  that  when 
the  employee  accepted  the  benefits  he  got  nothing  that  he 
was  not  legally  entitled  to  under  the  contract  by  which  he 
became  a  member  of  the  department.  No  new  consideration 
passed  to  him.  He  was  only  ratifying  the  old  contract 
which  he  entered  into  as  a  part  of  his  employment.  He  was 
only  exercising  the  option  he  had  bought  and  paid  for  out 
of  his  wages.  The  consideration  of  his  agreement  was  the 
contract  of  employment.  The  company  said  to  him:  'We 
will  not  employ  you  at  all  unless  you  come  into  this  depart- 
ment. If  you  do  come  into  it  you  will  be  entitled  to  share 
its  benefits.'  Now  Congress  says:  'That  is  all  right  so 
far ;  but  the  provision  in  the  contract  that  the  employee,  by 
accepting  those  benefits  which  he  has  bought  and  paid  for, 
shall  bar  himself  from  recovering  his  real  damages  is  unfair 
and  against  sound  policy  and  shall  be  void.  What  is  re- 
ceived under  such  a  contract  shall  relieve  the  company  only 
so  far  as  it  ought  to  be  relieved.'  Can  the  court  say  there 
is  no  basis  whatever  for  such  a  legislative  decision?  It  is 
easy  to  see  that  it  may  be  for  the  interest  of  the  carrier 
to  treat  itself  as  liable  in  all  cases  of  accident  and  injury 
to  its  employees,  waiving  the  question  of  negligence,  pro- 
vided the  amounts  to  be  paid  for  such  injuries  are  suffi- 
ciently low,  and  it  may  appear  when  the  average  is  struck 
that  the  carrier  has  made  an  immense  saving.  If  Congress 
thought  that  these  relief  benefits  and  insurance  contracts 
tended  on  the  whole   to  relieve  the  common  carrier  of  a 


RELEASE    OF    CLAIM    FOR    DAMAGES.  271 

large  part  of  the  burden  which  they  ought  to  bear,  and 
threw  the  burden  upon  the  public,  that  may  have  been  a 
good  reason  for  the  passage  of  the  act.  Before  the  court 
decides  that  the  act  has  no  sound  rational  basis  it  ought  to 
look  at  all  possible  reasons  that  may  have  induced  Congress 
to  adopt  it.  What  Congress  evidently  intended  to  do  was 
to  cut  up,  root  and  branch,  this  whole  attempt  on  the  part 
of  the  employer  to  substitute  its  own  determination  of  its 
liability  and  its  own  adjustment  of  the  extent  of  that  lia-, 
bility  as  far  as  the  same  were  embraced  in  the  original 
contract  of  employment,  and  to  substitute  for  it  an  adjust- 
ment in  open  court,  or,  at  least,  an  adjustment  by  the  parties 
independent  of  such  original  contract.  There  is  still  an- 
other consideration  that  may  have  had  weight  with 
Congress.  That  body  has  attempted  to  secure  a  greater 
degree  of  safety  to  railroad  employees  by  requiring  rail- 
roads to  use  certain  safety  appliances  and  to  abstain  from 
the  use  of  certain  other  appliances,  such  as  old-fashioned 
couplings  which  maim  and  kill  large  numbers  of  their 
workmen.  If  railroads  can  disobey  such  laws  and  turn 
themselves  into  insurance  companies  for  the  settlement  of 
claims  growing  out  of  their  violation  of  these  laws,  and  fix 
the  amounts  to  be  paid  at  such  rates  as  are  shown  by  the 
plea  in  bar  now  under  consideration,  it  may  be  very  difficult 
to  enforce  such  statutes  at  all. 

"Liberty  of  contract  is  certainly  a  very  valuable  right,  but 
it  may  not  be  hard  to  understand,  in  view  of  all  these  con- 
siderations, how  Congress  came  to  look  upon  the  so-called 
liberty  of  contract  between  the  employee  and  the  employer 
as  theoretical  rather  than  real,  and  to  conclude  that  an  act 
like  this  would  be  really  in  favor  of  liberty  rather  than 
against  it.  This  court  cannot  find  it  in  its  province  to 
attempt  to  undo  the  work  of  the  legislature  in  this  humane 
acf'^"" 

6m  Potter  V.  Baltimore  &  0.  R.  Goldenstein  v.  Baltimore  &  0.  R. 
Co.     37     Wash.     Law     Rep.     466;       Co.  37  Wash.  Law  Rep.  2;  McNa- 


272  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

§  186.  Receipt  of  relief  money. — The  statute  gives  the 
defendant  the  right  to  set  off  ''any  sum  it  has  contributed 
or  paid  to  any  insurance,  relief  benefit,  or  indemnity,  that 
may  have  been  paid  to  the  injured  employe  or  the  person 
entitled  thereto  on  account  of  the  injury  or  death  for  which 
said  action  was  brought."  This  is  a  defense  and  must  be 
brought  forward  by  plea  by  the  defendant;  such  a  payment 
cannot  be  shown  under  the  general  denial  any  more  than  a 
settlement  of  the  liability  can  be.  After  ascertaining  the 
amount  the  plaintiff  would  otherwise  be  entitled  to  recover, 
the  jury  deducts  therefrom  the  amount  the  injured  person  has 
received  and  returns  a  verdict  for  the  balance.  The  court 
cannot  make  the  deduction.  The  defendant  may  set  off  any 
sum  it  has  contributed  or  paid  to  any  insurance,  or  relief 
benefit  it  has  paid,  and  it  may  also  set  off  the  amount  of  any 
"indemnity  that  may  have  been  paid  to  the  injured  employe 
or  the  person  entitled  thereto  on  account  of  the  injury  or 
death. ' '  It  is  the  amount  paid  by  the  defendant  that  may  be 
set  off  and  also  the  amount  the  plaintiff  has  received  for  his 
injuries  from  any  other  source  that  may  be  set  off.  If  the 
amount  paid  by  the  defendant  has  been  deducted  from  his 
wages  as  they  accrued,  then  the  payment  is  not  that  of  the  de- 
fendant, but  that  of  the  plaintiff.'^  But  the  insurance  or 
relief  benefit  must  have  been  in  force  at  the  time  of  his 
injury,  and  he  must  have  received  pecuniary  benefit 
therefrom ;  the  defendant  must  have  paid  nwney  for  the  in- 
surance or  benefit.     Of  course,  money  paid  for  the  insurance 

mara   v.   Washington   Terminal   Co.  In  Zikos  v.  Oregon  R.  &  N.  Co. 

35  App.  D.  C.  230;  38  Wash.  Law  179   Fed.    893,    it   is   said   that   this 

Rep.  343.  section    can    be    eliminated    and  the 

In  quite  a  recent  case  the  United  statute  still  stand. 

States  Supreme  Court  has  held  that  •  Wagner  v.  Chicago  &  A.  R.  Co. 

an   existing   valid   contract   may   be  265  111.  245;  106  N.  E.  809. 

rendered  invalid  by  an  act  of  Con-  In    this    case    the    employee    was 

gress  within  its  power  to  enact  under  allowed  to  show  he  was  an  interstate 

the  interstate  commerce  clause,  and  employee     to     escape     the     adverse 

this  would  seem  to  settle  the  validity  effect  to  him  of  a  state  law  otherwise 

of  the  section  of  this  Act  of  190H  now  applicable.     See  also   Rief  v.   Great 

under   discussion.      Louisville   &    N.  Northern  Ry.  Co.  126  Minn.  430;  148 

R.  Co.  v.  Mottloy,  219  U.  S.  467;  N.  W.  309. 
31  Sup.  Ct.  265;  55  L.  Ed.  297. 


RELEASE  OP  CLAIM   FOR  DAMAGES.  273 

or  benefit  by  another  common  carrier  cannot  be  deducted. 
Money  received  as  an  "indemnity"  does  not  come  from  an 
outside  source  but  has  a  connection  with  the  defendant.® 

§  187.  Contract  for  future  release  not  binding  on  bene- 
ficiaries.— Irrespective  of  whether  or  not  the  employee  is 
bound  by  his  contract  of  release  for  future  damages,  the 
beneficiaries  are  not  bound  thereby,  because  they  are  not 
parties  to  the  contract.  Such  a  contract  is  not  for  their  bene- 
fit.^ This  was  held  true  where  the  deceased  was  a  member 
of  a  relief  association,  and  had  agreed  that  the  acceptance  of 
the  relief  money  should  release  his  employer.^°  But  the  pro- 
viso to  Section  five  evidently  applies  where  the  beneficiaries 
bring  action  for  the  death  of  the  employee ;  and  they  will  be 
bound  by  its  provisions  the  same  as  the  employee,  except 
that  if  he  be  a  member  of  a  relief  association  and  has  not 
elected  to  accept  the  amount  due  therefrom,  whereby  his 
employer  would  be  released,  they  would  not  be  bound  by 
any  of  its  provisions,  unless  they  elected  to  accept  payment 
in  accordance  with  the  provisions  of  the  contract. 

§  188.  Release  by  beneficiary. — A  release  by  the  injured 
person  in  his  lifetime  and  after  his  injuries  of  the  defendant 
from  its  liabilities  to  him,  or  a  settlement  or  the  procuring  of 
a  judgment  by  him,  is  a  complete  bar  to  an  action  by  his 
administrator.^^    So  a  settlement  or  compromise  by  the  ad- 

^  It  is  usually  an  enforced  payment.  Robinson  v.  Baltimore  &  Ohio  R.  Co. 

^  It   is   clear   that   the   word    "in-  35  Sup.  Ct.  491;  58  L.  Ed. — ,  affirming 

demnity"  does  not  cover  the  case  of  40  App.  D.  C.  169. 

ordinary   life   or  accident  insurance.  The    acceptance    of    relief    money 

Brabham  v.  Baltimore  &  O.  R.  Co.  does  not  prevent  a  recovery.     Bur- 

220  Fed.  35.  nett  v.  Atlantic  Coast  Line  R.  Co. 

The  contract  of  exemption  applies  163  N.  C.  186;  79  S.  E.  414;  Adams 

to  all  cases  within  the  scope  of  the  v.  Northern  Pac.  R.  Co.  95  Fed.  938; 

act,  with  hke  effect  as  though  pro-  Illinois,    etc.,    R.    Co.   v.   Cozby,   69 

mulgated  by  an   act   of   state   legis-  111.  App.  256;  Maney  v.  Chicago,  etc., 

lation.     Hogerty   v.    Philadelphia   &  R.  Co.   49  111.   App.   105;  Strode  v. 

R.  R.  Co.  245  Pa.  443;  91  Atl.  854.  St.  Louis  Transit  Co.  (Mo.)  87  S.  W. 

The  acceptance   of   benefits   is   no  Rep.  976. 

release.     Ibid.     Burnett  v.   Atlantic  '"  Cowen  v.  Ray,  47  C.  C.  A.  452; 

Coast  Line  R.  Co.  163  N.  C.  186;  79  108    Fed.    Rep.    320;    Chicago,    etc., 

S.  E.  414;  Herring  v.  Atlantic  Coast  R.  Co.  v.  Wymore,  40  Neb.  645;  58 

Line  R.  Co.  (N.  C.)  84  S.  E.  863.  N.    W.    Rep.     1120;    McKering    v. 

The  amount  that  might  be  recover-  Pennsylvania  R.  Co.  65  N.  J.  L.  57; 
ed  under  a  state  workingman's  com-  46  Atl.  Rep.  715. 
pensation  statute  cannot  be  deducted  "  Hecht  v.  Ohio,  etc.,  R.  Co.  132 
from  the  amount  otherwise  recover-  Ind.  507;  32  N.  E.  Rep.  302;  Little- 
able.  Staley  v.  Illinois  Cent.  R.  Co.  wood  v.  Mayor,  etc.,  89  N.  Y.  24, 
111.  App.  593;  Jensen  v.  Southern  P.  affirming  15  J.  &  S.  547;  Ried  v. 
Co.  (N.  Y.)  109  N.  E.  600;  Southern  Great  Eastern  Ry.  Co.,  L.  R.  3  Q.  B. 
P.  Co.  v.  Pillsbury  (Col.)  151  Pac.  277.  555;  37  L.  J.  Q.  B.  278;  18  L.  T.  (N. 

9  Herring  v.  Atlantic  Coast  Line  R.  S.)   822;   16  W.   R.   1040;  Dibble  v. 

Co.  (N.  C.)  84  S.  E.  863.  New  York,  etc.,  R.  Co.  25  Barb.  183; 

But  an  agreement  by  a  porter  of  Southern,    etc.,    Co.    v.    Cassin,    111 

the   Pullman   Car  Company   not   to  Ga.   575;   36   S.    E.    Rep.    881;   Hill 

hold  the  railway  company  over  whose  v.    Pennsylvania    R.    Co.     178    Pa. 
track  he  is  hauled,  if  injured,  is  bind- 
ing upon  him,  because  he  is  not  an 
employee   of   the   railway   company. 


274 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


ministrator  is  a  bar  to  the  action/-  but  not  without  an  order 
of  coart.^^  But  neither  the  widow  nor  next  of  kin  of  the  de- 
ceased can  release  the  claim  of  the  administrator."  Yet  a 
beneficiary  may  release  so  much  of  the  amount  as  he  or  she 
would  be  entitled  to.^^  And  if  there  be  but  one  beneficiary, 
he  or  she  (and  so  all  of  them)  may  compromise  the  claim  in 


St.  223;  35  Atl.  Rep.  997;  35 
L.  R.  A.  196 ;  39  W.  N.  Cas.  221 ; 
Price  V.  Railroad  Co.  33  S.  C. 
556;  12  S.  E.  Rep.  413^  Brown  v. 
Chattanooga  Elec.  R.  Co.  101 
Tenn.  252;  47  S.  W.  Rep.  415. 
But  not  if  secured  by  unfair 
means.  Price  v.  Richmond,  etc., 
R.  Co.  38  S.  C.  199;  17  S.  E.  Rep. 
732;  Missouri,  etc.,  Co.  v.  Brant- 
ley, 26  Tex.  Civ.  App.  11;  62  S. 
^Y.  Rep.  94;  Thompson  v.  Ft. 
Worth,  etc.,  R.  Co.  97  Tex.  590; 
80  S.  W.  Rep.  990 ;  Blount  v.  Gulf, 
etc.,  R.  Co.  (Tex.  Civ.  App.)  82 
S.  W.  Rep.  305. 

The  bringing  of  a  suit  by  the 
deceased,  undetermined  at  his 
death,  is  no  bar  to  the  adminis- 
trator's suit.  International,  etc., 
R.  Co.  V.  Kuehn,  70  Tex.  582;  8 
S.  W.  Rep.  484;  Indianapolis,  etc., 
R.  Co.  V.  Stout,  53  Ind.  143. 

Evidence  of  the  payment  of  the 
expenses  of  the  deceased's  sickness 
and  of  his  funeral  expenses  is  not 
admissible  in  evidence.  Murray  v. 
Usher,  117  N.  Y.  542;  23  N.  E. 
Rep.  564;  46  ^un,  404. 

"Hencliey  v.  City  of  Chicago, 
41  111.  136;  Hartigan  v.  Southern 
Pac.  R.  Co.  86  Cal.  142;  24  Pac. 
Rep.  851;  Foot  v.  Great  Northern 
R.  Co.  81  Minn.  493;  84  N.  W. 
Rep.  342;  52  L.  R.  A.  354;  Balti- 
more, etc.,  R.  Co.  v.  Iloltman,  25 
Ohio  C.  C.   140. 

•MMttsimig,  etc..  R.  Co.  v.  (Jipe, 
IGO  Ind.  '6(H);  U5  N.  E.  Rep.  1034. 


Order  is  not  necessary.  Foot  v. 
Great  Northern  R.  Co.  supra.  A 
fravidulent  release  held  void. 
Pisane  v.  Shanley,  66  N.  J.  L.  1 ; 
48  Atl.  Rep.  618.  Before  appor- 
tionment, is  valid.  Sluber  v.  Mc- 
Entee,  142  N.  Y.  200;  47  N.  Y. 
App.  Div.  471;  63  N.  Y.  Supp. 
580;  affirmed,  164  N.  Y.  58;  58 
N.  E.  Rep.  4. 

"  Yelton  V.  Evansville,  etc.,  R. 
Co.  134  Ind.  414;  33  N.  E.  Rep. 
629;  Cleveland,  etc.,  Ry.  Co.  v. 
Osgood,  36  Ind.  App.  34;  73  N.  E. 
Rep.  285;  Dovveli  v.  Burlington, 
etc.,  Ry.  Co.  62  Iowa,  029;  Pitts- 
burg, etc.,  R.  Co.  V.  Moore,  152 
Ind.  345;  53  N.  E.  290;  44  L.  R. 
A.  638;  South,  etc.,  R.  Co.  v.  Sul- 
livan, 59  Ala.  272;  Knoxville,  etc., 
R.  Co.  V.  Acuir,  92  Tenn.  26;  20 
S.  W.  Rep.  348;  Pittsburg,  etc.,  R. 
Co.  V.  Hosea,  152  Ind.  412;  53 
X.  E.  Rep.  419;  Oyster  v.  Bur- 
lington, etc.,  R.  Co.  65  Neb.  789; 
91  N.  W.  Rep.  699;  59  L.  R.  A. 
291. 

"Chicago,  etc.,  Ry.  Co.  v.  Wy- 
more,  40  Neb.  645;  58  N.  W.  Rep. 
1120. 

**  Prater  v.  Tennessee,  etc.,  Co. 
105  Tenn.  496;  58  S.  W.  Rep. 
1008;  Small  v.  Kreech  (Tenn.) 
46  S.  W.  Rep,  1019;  Stephens  v. 
Nashville,  etc.,  R.  Co.  10  Lea,  448; 
Schmidt  v.  Deegan,  09  Wis.  300; 
34  N.  W.  Rep.  83;  Southern  Pac. 
(\).  V.  Tomlinson,  163  IT.  S.  369; 
16  Sup.  Ct.  Rep.  1171. 


CHAPTER  XI. 
IN  WHAT  COURTS  SUIT  MAY  BE  BROUGHT. 


189.  Plaintiff    may    bring    suit    in       192.  Removal    of    case    to    Federal 

Federal  court.  court. 

190.  Jurisdiction  of  state  courts.           193.  Joinder  of  action  under  Federal 

191.  Congress  conferring  jurisdiction  statute  and   a  common   law 

on  a  state  court.  action. 

194.  Where  actions  must  be  brought. 

§  189.  Plaintiff  may  bring  suit  in  a  federal  court. — Section 
six  as  amended  in  1910  provides  that  "under  this  Act  an  ac- 
tion may  be  brought  in  a  Circuit  Court  of  the  United  States/ 
in  the  district  of  the  residence  of  the  defendant,  or  in  which 
the  cause  of  action  arose,  or  in  which  the  defendant  shall 
be  doing  business  at  the  time  of  commencing  such  action. 
The  jurisdiction  of  the  courts  of  the  United  States  under 
this  Act  shall  be  concurrent  with  that  of  the  courts  of  the 
several  states,  and  no  case  arising  under  this  Act  and 
brought  in  any  state  court  of  competent  jurisdiction  shall 
be  removed  to  any  court  of  the  United  States."  -  It  will  be 
noted  that  this  statute  says  nothing  about  the  amount  in- 
volved. The  action  is  a  special  one  on  the  statute — a  new 
cause  of  action,  so  far  as  the  United  States  law  is  concerned, 
one  that  could  not  prior  to  this  Act  be  enforced  under  a 

1  The     Judicial      Code     of     the  "of  all  suits  and  proceedings  ards- 

United  States,  approved  March  3,  ing  under  any  law  regulating  com- 

1911,  abolished  the  circuit  courts,  merce,     except     those     suits     and 

and  the  powers  aad  duties  hereto-  proceedings     of     which     exclusive 

fore  exercised  and  performed  were  jurisdiction     has     been     conferred 

transferred  and  imposed  upon  the  upon   the    commerce    court." 
United  States  district  courts,  and  sigee     Appendix      A      for      this 

by    Section    24    of    Article    8,    the  amendment, 
district    courts    have    jurisdiction 

275 


276 


FEDERAL,    EMPLOYERS'    LIABILITY    ACT. 


United  States  statute — and  Congress  having  declared  that 
under  the  act  "an  action  may  be  brought  in  a  Circuit  Court 
of  the  United  States ' '  intended  and  did  by  this  declaration 
give  jurisdiction  to  that  court  to  bring  an  action  "under 
this  statute"  regardless  of  the  amount  involved.^ 

§  190.  Jurisdiction  of  state  courts. — In  an  action  brought 
under  this  statute  the  Supreme  Court  of  Connecticut  had 
held  that  the  courts  of  that  state  had  no  jurisdiction  of  a 
cause  of  action  brought  upon  this  Act.'*  But  before  the  de- 
cision of  the  Connecticut  Supreme  Court  a  number  of 
actions  had  been  brought  upon  this  Act  in  state  courts,  in 
some  of  which  no  question  of  jurisdiction  was  raised,^  and 
in  others  it  was,  and  decided  that  a  state  court  had  juris- 
diction.®   This  question  came  up  in  one  of  the  circuit  courts, 


'  To  the  author  this  seems  to  be  a 
reasonable  interpretation  of  this 
section;  but  so  far  as  he  knows  the 
question  has  not  been  decided.  But 
it  may  be  reasoned  that  by  the 
attempt  to  confer  jurisdiction  on 
state  courts,  Congress  intended  only 
to  limit  the  right  of  action  in  the 
Federal  courts  to  instances  where 
three  thousand  dollars  or  more  are 
involved,  and  to  provide  a  forum 
where  cases  below  that  amount  could 
be  tried.  This  amendment  was  made 
because  of  the  decision  of  the  Supreme 
Court  of  Connecticut  in  Hoxie  v. 
New  York,  N.  H.  &  H.  R.  R.  Co.  82 
Conn.  352;  73  Atl.  754,  holding  that 
state  courts  had  no  jurisdiction  of  an 
action  brought  upon  this  statute, 
and,   therefore,    if   that   be   true,    an 


employee  whose  damages  did  not 
amount  to  three  thousand  dollars  was 
without  remedy.  But  it  seems  to  the 
author  that  it  was  the  intent  of 
Congress  to  give  the  Federal  courts 
jurisdiction  of  all  actions  brought 
under  this  statute,  regardless  of  the 
amount  involved. 

If  an  employee  admits  he  was  not 
engaged  in  interstate  commerce,  that 
admission  deprives  the  Federal  Court 
of  its  jurisdiction.  Delaware,  L.  & 
W.  R.  Co.  v.  Yurkonis,  220  Fed.  429. 

<  Hoxie  v.  New  York,  N.  H.  &  H. 
R.  R.  Co.  82  Conn.  352;  73  Atl.  754, 
reversed  223  U.  S.  1;  32  Sup.  Ct. 
169;  56  L.  Ed.  327. 

*  Central  of  Georgia  R.  Co.  v. 
Sims,  163  Ala.  669;  53  So.  826. 

*  Bradbury  v.  Chicago,  R.  I.  &  P. 
Ry.  Co.  149  Iowa  51;  128  N.  W.  1; 
St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
Hesterly  (Ark.)  135  S.  W.  874;  At- 
lantic Coast  Line  R.  Co.  v.  Whitney, 
62  Fla.  124;  56  So.  937. 


IN  WHAT   COURTS   SUIT   MAY   BE  BROUGHT.  277 

in  a  case  removed  to  it  from  a  state  court,  and  the  court 
held  that  a  state  court  could  entertain  an  action  based 
wholly  on  this  statute."*  ''State  courts,"  said  Judge  Whit- 
son,  "enforce  rights  arising  under  the  laws  of  the  different 
states,  applying  the  rule  of  lex  loci  contractus.  They 
uphold  rights  arising  in  foreign  nations  which  depend  upon 
the  constitution  of  foreign  laws.  Let  it  be  admitted  that 
this  is  through  comity  only,  yet  it  would  appear  even  then 
that  the  analogy  ought  to  follow.  But  this  is  a  stronger 
reason  growing  out  of  the  more  intimate  relation  of  the 
states  to  the  general  government.  The  Constitution  of  the 
United  States  being  the  supreme  law  of  the  land,  state  and 
Federal  courts  are  alike  subject  to  its  provisions,  and  the 
refusal  of  the  former  to  enforce  rights  conferred  by 
Congress,  would  put  them  in  the  same  category  as 
would  a  refusal  to  entertain  causes  flowing  from  any  other 
recognized  source  of  authority.  It  would  be  an  anomaly  in 
our  system  of  state  tribunals,  after  having  so  long  enter- 
tained the  grievances  of  litigants,  where  rights  are  traceable 
to  Congressional  legislation,  should  refuse  to  further  do  so 
because  of  the  fact  that  there  has  been  provided,  by  a  power 
clearly  competent,  different  rules  of  liability  for  those  en- 
gaged in  interstate  commerce  from  those  which  may  be 
fixed  by  statutes  or  recognized  by  decisions  in  the  several 
states.  All  government  rests  upon  acquiescence  in  the 
established  order.  Where  common  consent  is  withdrawn, 
prescribed  rules  of  conduct  are  overthrown  and  anarchy 
reigns;  and  it  is  not  to  be  supposed  that  state  courts  will 
or  can  refuse  to  abide  by  the  result  when  the  Supreme 
Court,  the  final  arbiter,  has  decided  that  they  have  juris- 
diction. If  this  should  occur,  the  Constitution  would  cease 
to  be  the  supreme  law  of  the  land,  and  its  express  pro- 
vision that  'the  judges  in  every  state  shall  be  bound  thereby, 
anything  in  the   Constitution  or  laws  of  any  state  to   the 

6a  Zikos  T.   Oregon  R.  &  N.  Co.       179  Fed.  893. 


278  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

contrary  notwithstanding, '  would  become  null  and  its  appli- 
cation inoperative. ' ' "'' 

"The  general  question,"  said  Justice  Bradley,  "whether 
state  courts  can  exercise  concurrent  jurisdiction  with  the 
Federal  courts  in  cases  arising  under  the  Constitution,  laws 
and  treaties  of  the  United  States,  has  been  elaborately  dis- 
cussed, both  on  the  bench  and  in  published  treatises  some- 
times with  a  leaning  in  one  direction  and  sometimes  in  the 
other;  but  the  result  of  these  discussions  has,  in  our  judg- 
ment, been,  as  seen  in  the  above  cases,  to  affirm  the  juris- 
diction, where  it  is  not  excluded  by  express  provisions  or 
by  incompatibility  in  the  exercise  arising  from  the  nature  of 
the  particular  case.  When  we  consider  the  structure  and 
true  relations  of  the  Federal  and  state  governments,  there 
is  really  no  just  foundation  for  excluding  the  state  courts 
from  all  such  jurisdiction.  The  laws  of  the  United  States 
are  laws  of  the  several  states,  and  just  as  much  binding 
on  the  citizens  and  courts  thereof  as  the  state  laws  are.  The 
United  States  is  not  a  foreign  sovereignty  as  regards  the 
several  states,  but  is  a  concurrent  and,  within  its  jurisdic- 
diction,  paramount  sovereignty.  Every  citizen  of  a  state  is 
a  subject  of  two  distinct  sovereignties,  having  concurrent 
jurisdiction  in  the  states ;  concurrent  as  to  place  and 
person,    though    distinct    as    to    subject-matter.      Legal    or 

8b  "So,  thft  holding   in  Hoxie  v.  "The  legislature  of  a  state  can- 

Kew  York,  N.  H.  &  H.  R.  R.  Oo.  not  abrogate  or  modify  any  of  the 

823   Conn.   732;    73  Atl.  754,   that  provisions   of   the   Federal   Consti- 

it   was   not   intended   by   Congress  tution  nor  of  the  acts  of  Congress 

that  the  rights  granted   should  be  touching    matters   within   congres- 

enforceable    in    the    state    courts,  sional   control ;    but   the   courts   of 

cannot  be  followed  for  the  reasons  the  state,  in  the  absence  of  a  pro- 

alr^ady  assigned  and  for  the  addi-  hibitory   provision   in    the   Federal 

tional   reason   that  jurisdiction   of  Constitution  or   acts   of   Congress, 

the  state  ofjurts  is  attributable  to  have    full    jurisdiiction    over    oases 

the    powers    conferred    upon    them  under  the  Constitution  and  laws  of 

by  the  states.     To  defeat  the  exer-  the    United    States."      Murray    v. 

cise  of   this   power   there  must   be  Chicago    &     N.     W.     Ry.     Co.     62 

an    expreas     prohibition    by    Con-  Fed.   24. 
gress."     Zikos  v.   Oregon  R.  &  N. 
Co.    17i»    Fed.    893. 


IN  WHAT   COURTS   SUIT   MAY   BE  BROUGHT.  279 

equitable  rights  acquired  under  either  system  of  law,  may 
be  enforced  in  any  court  of  either  sovereignty,  competent  to 
hear  and  determine  such  kind  of  rights  and  not  restrained 
by  its  constitution  in  the  exercise  of  such  jurisdiction. 
Thus  a  legal  or  equitable  right  acquired  under  the  state 
laws  may  be  prosecuted  in  the  state  courts,  and  also,  if 
parties  reside  in  different  sates,  in  the  Federal  courts.  So 
rights,  whether  legal  or  equitable,  acquired  under  the  laws 
of  the  United  States,  may  be  prosecuted  in  the  United 
States  courts,  or  in  the  state  courts,  competent  to  decide 
rights  of  the  like  character  and  class;  subject,  however,  to 
this  qualification,  that,  where  a  right  arises  under  a  law 
of  the  United  States,  Congress  may,  if  it  see  fit,  give  to  the 
Federal  courts  exclusive  jurisdiction.  This  jurisdiction  is 
sometimes  exclusive  by  express  enactment  and  sometimes 
by  implication.  If  an  act  of  Congress  gives  a  penalty  to  a 
party  aggrieved,  without  specifying  a  remedy  for  its  en- 
forcement, there  is  no  reason  why  it  should  not  be  enforced, 
if  not  provided  otherwise  by  some  act  of  Congress,  by  a 
proper  action  in  a  state  court.  The  fact  that  a  state  court 
derives  its  existence  and  functions  from  the  state  laws  is  no 
reason  why  it  should  not  afford  relief,  because  it  is  subject 
also  to  the  laws  of  the  United  States,  and  is  just  as  much 
bound  to  recognize  the  two  as  operative  wdthin  the  state 
as  it  is  to  recognize  the  state  laws.  The  two  together  form 
one  system  of  jurisprudence,  which  constitutes  the  law  of 
the  land  for  the  state;  and  the  courts  of  the  two  juris- 
dictions are  not  foreign  to  each  other,  so  as  to  be  treated  by 
each  other  as  such,  but  as  courts  of  the  same  country,  hav- 
ing jurisdiction  partly  different  and  partly  concurrent."  ^° 
The  reasoning  of  this  position  is  greatly  supported  by  the 
many  cases  that  have  been  brought  in  state  courts  to  re- 

6c  Claflin  V.  Houseman,  93  U.  S.  v.    Oliver,    97    Ala.    719;     12    So. 

130;    23    L.    Ed.    83,    quoted    with  238;    38    Am.    St.   215;    Wilcox  v. 

approval   in   Bradburv   v.   Chicago  Luco,   118  Cal.  642:   45  Pac.  676; 

&   N.   W.   Ry.   Co.    149    Iowa,   51;  50  Pac.   758;    62  Am.  ,St.  306;   45 

128  N.  W.  i.  L.   R.  A.   582;    Schuyler  National 

On  thia  point,  see,  also,  Raisler  Bank  v.  Bollong,  24  Neb.  827;   40 


280 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


cover  damages  occasioned  by  a  failure  to  equip  cars  with 
automatic  couplers  as  Congress  had  required  of  railway 
companies  engaged  in  interstate  commerce,  even  though 
provisions  of  the  statute  providing  that  an  employee  of  such 
a  company  did  not  assume  the  risk  of  coupling  cars  not 
equipped  as  the  statute  required.*"^ 


§  191.    Congress  conferring  jurisdiction  on  a  state  court. 

— The  amendment  of  1910  to  Section  six  expressly  declares 

that  "The  jurisdiction  of  the  courts  of  the  United  States 

under  this  Act  shall  be  concurrent  with  that  of  the  courts 

of  the  several  states."     The  wording  of  this  amendment, 

Ala.  487;  35  So.  Rep.  457;  Geor- 
gia Pac.  R.  Co.  V.  Davis,  92  Ala.  307; 
9  So.  Rep.  253;  25  Am.  St.  Rep.  47. 

That  state  courts  have  jurisdic- 
tion is  settled.  Mondon  v.  N.  Y., 
etc.,  R.  Co.,  32  U.  S.  Sup.  Ct.  169; 
White  v.  Missouri  P.  Ry.  Co.  (Mo. 
App.)  178  S.  W.  83;  Kamboris  v. 
Oregon  W.  R.  &  N.  Co.  (Ore.)  146 
Pac.  1097;  Corbett  v.  Boston  &  M. 
R.  Co.  (Mass.)  107  N.  E.  60;  Gibson 
v.  Bellingham  &  N.  Ry.  Co.  213  Fed. 
488;  Easter  v.  Virginian  Ry.  Co. 
(W.  Va.)  86  S.  E.  37. 

Mr.  Borah:  "If  the  state  court 
has  jurisdiction  in  the  matter,  it 
could  enforce  the  Federal  law  just 
the  same  as  if  it  were  a  Federal 
court."  60  Cong.  Rec,  1st  Sess., 
p.  4537. 

Mr.  Dolliver:  "But  I  do  not 
hesitate  to  say  that  I  understand 
that  a  citizen  of  Georgia  can  bring 
a  suit  in  the  state  court  of  Geor- 
gia for  the  enforcement  of  his 
riglits  under  this  act,  and  would 
remain  in  the  state  court  of  Geor- 
gia unless  the  defendant  exercised 
his  right  under  the  judiciary  act 
and  transferred  the  controversy  to 
the  Federal  court."  60  Oong.  Rec, 
1st  Sess.,  p.  4548. 

Senate  Report,  No.  432  in  the 
61st  Congress,  2d  Session,  March 
22,  1010,  contains  an  argument, 
backed  by  the  citation  of  many 
cases  and  quotations  therefrom, 
showing  tliat  the  state  courts  have 
jurisdiction  of  cases  brought  under 
this  statute.    Appendix  B. 


K  W.  417;  Bletz  v.  Columbia 
Nat.  Bank,  87  Pa.  92;  30  Am. 
Rep.  345;  Brinkerhoff  v.  Bostwick, 
88  N.  Y.  60;  People  v.  Welch,  141 
N.  Y.  273;  36  N.  E.  328;  24 
L.  R.  A.   117;   38  Am.  St.  793. 

edSee  St.  Louis,  etc.,  Ry.  Co.  v. 
Taylor,  210  U.  S.  281;  28  Sup.  Ct. 
Rep.  >616;  52  L.  Ed.  1061;  Sohlem- 
mer  v.  Buffalo,  etc.,  Ry.  Co.  205 
U.  S.  1;  27  Sup.  Ct.  Rep.  407; 
51  L.  Ed.  681;  reversing  207 
Pa.  St.  198;  56  Atl.  Rep.  417; 
Schlemmer  v.  Buffalo,  etc.,  R.  Co. 
220  U.  iS.  590;  31  Sup.  Ct.  561; 
55  L.  Ed.  596;  affirming  222  Pa. 
470;  71  Atl.  1053.  A  number  of 
cases  have  been  brought  upon  the 
Safety  Appliance  Act  in  state 
courts.  Missouri  Pac.  Ry.  Co.  v. 
Brinkmeier,  77  Kan.  14;  93  Pac. 
Rep.  621;  Southern  Pac.  R.  Co. 
v.  Allen  (Tex.  Civ.  App.),  106 
S.  W.  Rep.  441;  Chicago,  etc., 
Ry.  Co.  v.  State  (Ark.),  Ill  S. 
W.  Rep.  456;  Cleveland,  etc.,  Ry. 
C().  V.  Curtis,  134  111.  App.  565; 
Nichols  V.  Chesapeake,  etc.,  Ry. 
Co.  32  Ky.  L.  Rep.  270;  105  S.  W. 
4H1;  32  Ky.  L.  Rep.  270;  Mobile, 
etc.  R.  Co.  V.  Broml)erg,  141 
Ala.  258;  37  So.  Rep.  395;  Kansas 
City,    (»tc.,    R.    Co.    V.    Flippo,    138 


IN  WHAT  COURTS   SUIT  MAY   BE   BROUGHT.  281 

it  would  seem,  proceeds  upon  the  assumption  that  state  courts 
had  jurisdiction  of  actions  brought  under  the  Act  and 
Federal  courts  did  not  (at  least  if  the  amount  involved  did 
not  amount  to  two  thousand  dollars),  and  thereby  it  was 
sought  to  confer  jurisdiction  upon  the  Federal  courts.  But 
such  is  not  the  true  interpretation  of  the  statute,  in  the 
light  of  the  debates  in  Congress.  This  amendment  was 
made  to  confer  jurisdiction  upon  state  courts,  because  of 
the  decision  of  the  Supreme  Court  of  Connecticut,®®  which 
was  severely  criticised  and  declared  to  be  erroneous.  The 
question  is  a  very  pertinent  one,  if  a  state  court  had  no  juris- 
diction of  an  action  brought  under  this  statute  can  Congress 
confer  it?  This  question  has  not  been  specifically  answered 
although  it  has  been  discussed.**^  If  we  turn  to  a  case  of  a 
state  court  granting  a  foreigner  naturalization  papers  under 
the  Federal  statutes,  we  have  an  analogous  instance  of  a 
state  court  acting  under  a  Federal  statute.  It  has  been  ex- 
pressly held  that  Congress  can  confer  power  upon  state 
courts  to  hear  and  grant  an  application  for  naturalization 
papers,  without  an  act  of  the  state  legislature  authorizing 
it  to  assume  jurisdiction  under  the  Federal  statute.  By  the 
Federal  statute®^  '*a  court  of  record  of  any  of  the  states 
having  common-law  jurisdiction  and  a  seal,  and  a  clerk"  is 
expressly  authorized  by  Congress  to  naturalize  qualified 
aliens,  and  to  issue  to  them  certificates  of  citizenship.  The 
Constitution  of  the  United  States  provides  that  Congress 
shall  have  power  "to  establish  a  uniform  rule  of  naturaliza- 
tion *  *  *  to  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  power, 
and  all  other  powers  vested  by  this  Constitution  in  the  gov- 
ernment of  the  United  States  or  in  any  department  or 
offices  thereof,"  and  that  "this  Constitution  and  the  laws 
of  the  United  States  which  shall  be  made  in  pursuance 
thereof    *    *    *    shall  be  the  supreme  law  of  the  land,  and 

eeHoxie  v.  New  York,  N.  H.  &  73  Atl.  762. 

H.    R.    R.    Co.    82    Conn.    352;    73  ef  Zikos   v.   Ore^n   R.   &  N".  Co. 

Atl.   754.  Mondon  v.   N.  G.  A.  H.  179  Fed.  893. 

&    H.     R.    Co.,     82     Conn.     373;  eg  R.  s.  Sec.  2L&5. 


282  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

the  judges  in  every  state  shall  be  bound  thereby,  anything 
in  the  Constitution  or  laws  of  any  state  to  the  contrary 
notwithstanding."*^'^  It  is  an  axiomatic  construction  of  the 
powers  conferred  by  the  Federal  Constitution  that  the 
grant  of  power  to  do  an  act  or  to  obtain  an  end  is  an  implied 
grant  of  plenary  authority  to  select  and  use  the  appropriate 
means  to  accomplish  the  purpose  contemplated.  It  should 
be  observed  that  the  Constitution  of  the  United  States  hav- 
ing granted  Congress  power  over  interstate  commerce,  such 
power  (and  such  are  the  effect  of  the  decisions),  draws 
to  Congress  authority  to  select  and  use  all  appropriate 
means  to  enforce  its  provisions.  In  a  case  where  the  power 
of  a  state  court  to  naturalize  a  foreigner  was  involved  it 
was  claimed  that  this  act  of  a  state  court  in  hearing  an 
application  for  and  granting  a  naturalization  certificate 
was  void  on  two  grounds:  First,  because  Congress  had  no 
power  under  the  Constitution  to  grant  this  power  to  a  state 
court ;  and,  second,  because  if  it  had  the  power,  a  court  of 
common-law  jurisdiction  had  no  authority  to  accept  or  to 
exercise  this  power  in  the  absence  of  state  legislative  per- 
mission so  to  do  from  the  state  which  established  it.  In 
one  case  the  court  considered  that  as  the  statute  on  naturali- 
zation had  been  in  force  since  1790,  had  been  universally 
acted  upon  by  the  courts  and  executive  officers  since  that 
date  without  question  of  its  validity,  it  was  now  too  late 
to  raise  the  question  of  its  constitutionality.  "Nor  are 
the  conclusions  which  contemporaneous  construction,  time, 
and  practice  have  adopted  without  cogent  reasons  to  sup- 
port them,"  said  the  court.  "While  it  is  true  that  Mr. 
Justice  Story,  speaking  for  the  Supreme  Court,  declared  in 
1816  •■''  that  the  Congress  had  not  vested  any  portion  of  the 
judicial  power  of  the  nation  in  courts  which  it  did  not 
itself  ordain  and  establish,  and  this  statement  has  since 
been  repeated ;  the  fact  is  that  he  was  then  thinking  and 

eh  Art.   1,  Soc.  8,  and  Art.  0.  1     Wheat.     304,     328-333;      4     L. 

81  In  Martin  v.  Hunter's  Lessee,      Ed.   97. 


IN  WHAT   COURTS   SUIT   MAY   BE  BROUGHT.  283 

speaking  of  the  judicial  power  granted  by  Section  one  ^^ 
and  defined  by  Section  two  '"^  of  Article  2  of  the  Constitution. 
The  better  opinion  now  is  that  the  judicial  power  granted 
by  the  former  action,  which  may  be  vested  in  the  national 
courts  only,  is  defined  in  the  latter  section ;  that  it  necessarily 
extends  only  to  the  trial  of  'all  cases  in  law  and  equity 
arising  under  this  Constitution,'  and  to  the  trial  of  the 
other  nine  classes  of  cases  named  in  Section  two,  and  speci- 
fied by  Chief  Justice  Jay  in  his  opinion  in  ChisJiolm  v. 
Georgia ^'^^  and  that  these  sections  neither  expressly  nor  im- 
pliedly prohibit  Congress  from  conferring  judicial  power 
upon  other  courts,  or  upon  executive  or  other  officers,  in 
other  cases  where,  in  its  opinion,  the  devolution  of  such 
power  is  either  necessary  or  convenient  in  the  execution  of 
the  authority  granted  to  the  legislative  or  to  the  executive 
department  of  the  government  through  the  Constitution. 
Through  the  authority  granted  to  the  territorial  courts  to 
have  and  determine  controversies  arising  in  the  territory 
of  the  United  States  is  judicial  power.  But  it  is  not  a  part 
of  the  judicial  power  granted  by  Section  one,  and  defined 
by  section  two,  of  article  three  of  the  Constitution.  Neverthe- 
less, under  the  constitutional  grant  to  Congress  of  power 
to  'make  all  needful  rules  and  regulations  respecting  the 

6j  "The    judicial     power    of    the  States   shall   be   a   party;    to   c^n- 

United   States    sliall   be  vested   in  troversies    between    two    or    more 

one   Supreme   Court,    and   in   such  states,  between  a  state  and  citizens 

inferior    courts     as    the    Congress  of  another  state,  between   citizens 

may,    from    time   to   time     ordain  of  diflerent  states,  between  citizens 

and  establish."  of  the   same   state  claiming   lands 

6k  "The  judicial  power  shall  ex-  under    grants    of    different    states, 

tend    to    all    cases,    in    law    and  and  between  a  state  or  the  citizens 

equity,  arising  under  tliis  Consti-  thereof,  and  foreign  states,  citizens 

tution,    the    laws    of    the    United  or  subjects." 

States,  and  treaties  made,  or  which  el  2  Dall.  419,  475;  1  L.  Ed.  440. 

shall  be  made,  under  their  author-  The    court    also    cited    Ex    parte 

ity;    to  all   cases  affecting  ambas-  Gist,    26    Ala.     156,    162;    Claflin 

sadors,  other  public  ministers,  and  v.   Houseman,   93  U.   S.    130,   139; 

consuls;   to  all  cases  of  admiralty  23   L.   Ed.   833;    and  Robertson   v. 

and  maritime  jurisdiction;  to  con-  Baldwin,    165   U.   S.   275,   279;    17 

troversies    to    which    the    United  Sup.  Ct.  326;  41  L.  Ed.  715. 


284 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


territory  *  *  *  belonging  to  the  United  States, '  '^'"  the 
body  may  create  territorial  courts  not  contemplated  nor 
authorized  by  article  three  of  the  Constitution,  and  may  con- 
fer upon  such  courts  and  the  bestowal  of  such  authority 
constitutes  appropriate  means  by  which  to  exercise  the  Con- 
gressional power  to  make  needful  rules  respecting  the  terri- 
tory belonging  to  the  United  States/"^  Of  the  same  nature 
is  the  judicial  power  conferred  upon  the  Secretary  of  the 
Interior,  the  Commissioner  of  the  General  Land  Office,  and 
his  subordinate  officers,  to  hear  and  determine  claims  to 
the  public  lands  of  the  nation ;  ^°  that  bestowed  on  justices 
of  the  peace  and  other  magistrates  of  the  state  by  Act 
September  24,  1789,^^  to  arrest  and  commit  to  jail  persons 
charged  with  a  violation  of  the  criminal  laws  of  the  United 
States ;  ^^  that  conferred  upon  the  state  courts  to  hear  and 
determine  suits  by  or  against  corporations  and  officers 
created  by  the  nation ;  *''"  that  gives  to  magistrates  of  any 
county,  city  or  town  corporate,  to  hear,  determine,  and 
certify  the  claims  of  owners  of  fugitive  slaves ;  *^  that  be- 
stowed upon  justices  of  the  peace  to  arrest,  commit  to  jail, 
and  deliver  to  the  masters  deserting  seamen ;  ®'  that  con- 
ferred upon  the  courts  of  the  state  by  the  various  acts  of  Con- 
gress which  empower  them  to  naturalize  aliens ; ""  and  that 

em  Article  4,  Sec.  3.  38   Claflin  v.  Houseman,  03  U.   S. 

6n  Citing   American   Ins.    Co.   v.  135 ;   23  L.  Ed.  833. 

Canter,  1  Pet.  511,  544;   7  L.  Ed.  es  Under  Act  February  12,  1793, 

242;     Clinton    v.    Englebrecht,    13  Cliap.  7,  1  U.   S.  Stat,  at  L.,  302, 

Wall.    434,    447;    20    L.    Ed.    650;  Sec.  3;   Prigg  v.  Pennsylvania,  16 

M<;Allister   v.    United    States,    141  Pet.  536,  615,  620,  621;    10  L.  Ed. 

U.   S.   174,   184;    11    Sup.  Ct.  949;  1060. 

35  L.  Ed.  693.  et  Under     Act     July     20,     1790, 

60  Citing  United  States  v.  Win-  Chap.    29;    1    U.    S.  'Stat.    at    L., 

ona  &  St.  P.  P.  Co.   67   Fed.  948,  131,    134;    Pobertson    v.    Baldwin. 

957;   15  C.  €.  A.  96,  104.  165  U.   S.   275,   277,  280;    17   Sup. 

epl  U.  S.  Stat,  at  L.,  Chap.  20,  Ct.  326;  41  L.  Ed.  715. 

Sec.   33.  «"  I  Stat.  103,  414;  2  Stat.  153, 

eqEx    parte   Gist,    26    Ala.    156,  155;  Re\'.  Stat.,  Sec.  2165;  Robert- 

1^.  son  V.  Baldwin,  165  U.  S.  275:   17 

«rBank  of  the  United  States  v.  Sup.    Ct.    326;     41    L.    Ed.    715; 

Deveaux,   5   Cranch,   61 ;    3   L.   Ed.  Claflin  v.  Houseman,  93  U.  S.  130, 


IN  WHAT   COURTS   SUIT   MAY   BE  BROUGHT.  285 

granted  by  acts  of  Congress  to  executive  officers  of  the 
United  States  and  to  courts  and  magistrates  of  the  states  in 
numerous  other  instances,  not  to  try  and  determine  the 
cases  specified  in  section  two  of  article  three  of  the  Con- 
stitution, but  to  perform  the  judicial  function  of  hearing 
and  determining  other  questions  and  issues  which  a  proper 
exercise  of  the  powers  granted  to  the  various  departments 
of  the  government  require  to  be  thus  decided.  The  grant 
by  the  Congress  of  the  United  States  of  the  judicial  power 
to  admit  aliens  to  citizenship,  and  to  hear  and  decide  the 
various  questions  which  do  not  arise  in  the  cases  specified 
in  article  three  of  the  Constitution,  but  which  a  proper 
exercise  of  the  powers  granted  by  that  instrument  to  the 
executive  or  to  the  legislative  department  of  the  govern- 
ment requires  to  be  judicially  decided,  was  neither  expressly 
nor  impliedly  prohibited  by  that  article.  The  Congressional 
power  to  make  such  a  grant,  and  to  vest  judicial  authority 
in  state  courts  and  officers,  in  such  case,  exists  by  virtue 
of  the  established  rule  that  the  grant  of  a  power  to  accom- 
plish an  object  is  a  grant  of  the  authority  to  select  and  use 
the  appropriate  means  to  attain  it."  The  court  then  pro- 
ceeds to  discuss  the  question  whether  it  is  necessary  for  a 
state  legislature  to  authorize  a  state  court  to  proceed  under 
the  Federal  statute  where  Congress  has  extended  to  it  au- 
thority to  act,  and  reaches  the  conclusion  that  it  is  not.®^ 
"When  the  United  States,"  said  the  court,  "offered  admis- 
sion to  the  Union  to  the  people  of  Missouri  [where  the  case 
arose],  it  made  this  offer  subject  to  the  potent  condition 
that  the  Constitution  of  the  United  States  and  the  laws  that 
had  been  made  and  should  be  made  by  Congress  in  accord- 
ance with  its  provisions,  should  become  the  supreme  law 

140;  23  L.  Ed.  83;   In  re  Connor,  that    this     prohibition    would     be 

39  Cal.  98^   101 ;   2  Am.  Rep.  427.  fatal  to  the  devolution  of  the  con- 

8v  "The  suggestion  is  noted  that  gressional  authority."   But  no  such 

the    legislature   of    a    state   might  inhibition    having    been     imposed, 

prohibit  its  courts  from  exercising  the  court  refused  to  discuss  it. 
the    power    of   naturalization,    and 


286  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

of  the  new  state,  binding  alike  upon  all  its  inhabitants, 
whether  laymen  or  lawyers,  citizens  or  judges.  The  people 
of  Missouri  accepted  the  offer  and  its  condition,  and  became 
a  part  of  the  nation.  Thereupon  the  Constitution  of  the 
United  States,  and  the  laws  enacted  in  accordance  with, 
which  then  conferred  upon  the  courts  of  the  states  the  judi- 
cial power  to  admit  aliens  to  citizenship,  became  a  part  of 
the  supreme  law  of  the  new  state  of  Missouri,  which  the 
people  of  that  state,  by  their  acceptance  of  the  offer  of 
admission,  had  contracted  should  be  obeyed  and  executed 
by  the  citizens,  the  judges,  and  the  courts  of  this  state.  The 
acceptance  by  the  people  of  Missouri  of  this  offer  of  admis- 
sion, in  view  of  the  power  which  had  been  granted  by  the 
Congress  to  certain  courts  of  the  states  to  admit  aliens  to 
citizenship,  and  in  view  of  the  practice  of  those  courts  to 
exercise  this  jurisdiction,  which  had  prevailed  for  nearly 
three  decades,  gave  to  the  courts  of  Missouri  plenary  juris- 
diction to  exercise  any  power  to  admit  aliens  to  citizen- 
ship which  the  Congress  had  then  conferred  or  might 
thereafter  bestow  upon  them  under  the  provisions  of  the 
Constitution  applicable  to  that  subject.'^  The  resistless  con- 
clusion is  that  the  Congress  of  the  United  States  was  by 
section  eight,  article  one,  of  the  Constitution,  granted  the 
necessary  authority  to  vest  in  the  courts  of  the  states  having 
common  law  jurisdiction  the  judicial  power  to  admit  quali- 
fied aliens  to  citizenship ;  that,  in  the  absence  of  legislative 
authority  or  permission  from  the  states  which  created  them, 
such  courts  may  lawfully  exercise  this  power,  and  that 
Section  2165  of  the  Revised  Statutes  is  neither  unconstitu- 
tional nor  invalid."  " 

'  Claflin  V.  Houseman,  93  U.  S.  130,  court  or  a  Federal  court.    Thomas  v. 

13G-1 12;  23  L.  Ed.  833;  E.x  parte  Gist,  Chicago  &  N.  W.  Ry.  Co.  202  Fed. 

26  Ala.   156,   164;  Prigg  v.   Pennsvi-  766;   St.    Louis   &   S.   F.   R.   Co.   v. 

vania,  16  Pet.  .536,  620;  10  L.  Ed.  1060;  Fithian,  106  Ark.  491;  155  S.  W.  88; 

Robertson  v.  Baldwin,  165  U.  S.  275,  St.  Louis  &  S.  F.  R.  Co.  v.  Conarty, 

280;  17  Sup.  Ct.  326;  41  L.  Ed.  715.  106  Ark.  421;  155  S.  W.  93;  Illinois 

"  Levin  v.  United  States,  128  Fed.  Central  R.  Co.  v.  Doherty,  153  Ky. 
826;  63  C.  C.  A.  476.  This  question  363;  155  S.  W.  119;  Farrugo  v. 
is  now  settled.  Mondou  v.  N.  Y.,  Philadelphia  &  R.  Ry.  Co.  233  U.  S. 
etc.,  R.  Co.  223  U.  S.  1;  32  Sup.  Ct.  352;  34  Sup.  Ct.  591;  58  L.  Ed.  — ; 
169;  .56  L.  Ed.  327.  The  plaintiff  can  Mis.souri,  K.  &  T.  Ry.  Co.  v.  Lena- 
make    his    choice    between    a    state  lian,    39    Okla.    283;    135    Pac.    507; 


IN  WHAT   COURTS   SUIT   MAY   BE  BROUGHT. 


287 


§  192.  Removal  of  case  to  Federal  court. — Before  section 
six  of  the  Federal  Act  was  amended  in  1910,  cases  brought 
in  a  state  court  could  be  removed  to  a  Federal  court,  if 
there  was  a  diversity  of  citizenship.'-^  But  in  the  amended 
section  it  is  now  provided  that  no  case  arising  under  the 
"act  and  brought  in  any  state  court  of  competent  jurisdic- 
tion shall  be  removed  to  any  court  of  the  United  States;" 
and  this  provision  has  been  declared  constitutional.^"  This 
act  being  remedial,  this  provision  is  liberally  construed.^^ 
A  case,  therefore,  cannot  be  removed  even  in  an  instance 
of  diverse  citizenship.^-  This  is  even  true  since  the  Federal 
Code  has  been  adopted.^^  But  if  a  removal  be  secured,  and 
no  action  be  taken  to  have  it  remanded,  the  Federal  court 
will  have  jurisdiction  of  the  case.^*  Filing  a  reply  in  the 
Federal  court  is  not  a  waiver  of  the  right  to  insist  that 
it  be  remanded.^^  If  the  defendant  secures  a  removal  he 
cannot  object  to  the  Federal  court  taking  jurisdiction  of 


Montgomery  v.  Southern  Pac.  Co. 
64  Ore.  597;  131  Pac.  507;  McCoul- 
lough  V.  Chicago,  R.  I.  &  P.  Ry.  Co. 
160  Iowa,  524;  142  N.  W.  67;  Hard- 
wick  V.  Wabash  R.  Co.  181  Mo.  App. 
156;  168  S.  W.  328.  A  Superior 
court  of  Washington  is  a  "state  court 
of  competent  jurisdiction."  Gibson 
V.  Bellingham  &  N.  Ry.  Co.  213  Fed. 
488;  Southern  Ry.  Co.  v.  Howerton 
(Ind.)  105  N.  E.  1025;  Pittsburg,  etc., 
R.  Co.  V.  Mitchell,  175  Ind.  196; 
91  N.  E.  735;  93  N.  E.  996. 

^Miller  v.  IlHnois  Central  R.  Co 
168  Fed.  982;  Clark  v.  Southern  Pac 
Ry.  Co.  175  Fed.  122;  Van  Brimmer 
V.  Texas  &  P.  Ry.  Co.  190  Fed.  394 
Nichols  V.  Chesapeake  &  Ohio  Ry 
Co.  195  Fed.  913;  Nichols  v.  Chesa- 
peake &  Ohio  Ry.  Co.  127  Ky.  310 
105  S.  W.  181;  17  L.  R.  A.  (N.  S.)  861 

'"  Teel  V.  Chesapeake  &  Ohio  Ry 
Co.  204  Fed.  918;  123  C.  C.  A.  240 
47  L.  R.  A.  (N.  S.)  21 ;  Fish  v.  Chicago 
R.  I.  &  P.  Ry.  Co.  (Mo.)  172  S 
W.  340;  McChesney  v.  Illinois 
Central  R.  Co.  197  Fed.  85;  Kelly  v 
Chesapeake  &  Ohio  Ry.  Co.  201  Fed 
602. 

"  Teel  V.  Chesapeake  &  Ohio  Ry, 
Co.,  supra. 

'2  St.  Louis  &  S.  F.  R.  Co.  v, 
Conarty,  106  Ark.  421;  155  S.  W.  93; 


Teel  V.  Chesapeake  &  Ohio  Ry.  Co., 
supra;  Pankey  v.  Atchison,  T.  &  S 
F.  Ry.  Co.  (Mo.  App.)  168  S.  W.  274: 
Eng  V.  Southern  Pac.  Co.  210  Fed 
92;  Burnett  v.  Southern  P.  &  S.  Ry 
Co.  210  Fed.  94;  Patton  v.  Cincin- 
nati, N.  O.  &  T.  P.  Ry.  208  Fed.  29 
Missouri,  K.  &  T.  Ry.  Co.  v.  Bunk- 
ley  (Tex.  Civ.  App.)  153  S.  W.  937 
Smith  V.  Carnas  Prairie  Co.  216  Fed 
799;  Chesney  v.  Illinois  Central  R 
Co.  197  Fed.  85;  Strauser  v.  Chicago 
B.  &  Q.  R.  Co.  193  Fed.  293;  Saiek  v 
Pacific  R.  Co.  193  Fed.  303;  Lee  v 
Texas,  St.  L.  &  W.  R.  Co.  193  Fed 
768;  Rice  v.  Boston  &  M.  R.  Co.  203 
Fed.  580;  Jones  v.  Kansas  City  So. 
Ry.  Co.  (La.)  68  So.  401;  Southern 
Ry.  Co.  V.  Puckett  (Ga.  App.)  85 
S.  E.  809;  Peek  v.  Boston  &  M.  R. 
Co.  223  Fed.  448;  Kansas  City  So. 
R.  Co.  V.  Leslie,  35  Sup.  Ct.  844, 
reversing  112  Ark.  305;  167  S.  W. 
844,  and  disapproving  Van  Brimmer 
V.  Texas  &  P.  R.  Co.  190  Fed.  394,  to 
the  contrary;  Lombardo  v.  Boston  & 
M.  R.  R.  223  Fed.  427. 

"Patton  V.  Cincinnati,  N.  O.  & 
T.  P.  Ry.  208  Fed.  29. 

i<  Thomas  v.  Chicago  &  N.  W.  Ry. 
Co.  202  Fed.  766;  Stephens  v.  Chi- 
cago. M.  &  St.  P.  Ry.  Co.  206  Fed. 
855. 

15  Burnett  v.  Spokane.  P.  &  S.  Ry. 
Co.  210  Fed.  94. 


238  FEDERAL,    EMPLOYERS*    LIABILITY    ACT. 

the  case.^*^  There  can  be  no  removal  even  though  the  suit 
be  regarded  for  purposes  of  removal  as  one  arising  under  the 
Federal  Act,  though  the  negligence  charged  be  not  covered 
by  the  act,  or  the  facts  alleged  do  not  make  out  that  there 
had  been  negligence  as  charged."  In  one  case  the  plaintiff 
joined  with  the  railroad  defendant  a  cause  of  action  against 
an  individual  defendant  alleged  to  have  been  the  railroad's 
master  mechanic,  alleging  that  he  negligently  directed  the 
intestate  to  operate  the  engine,  at  the  time  knowing  it  was 
defective,  and  that  the  track  over  which  he  was  to  operate 
it  was  also  defective.  In  a  petition  or  motion  to  remand 
the  case  the  railway  company  denied  that  the  individual 
defendant  had  even  been  its  master  mechanic,  alleged  that 
he  had  nothing  to  do  with  directing  the  intestate  to  operate 
the  locomotive  the  derailment  of  which  killed  him,  and  that 
such  allegations  in  the  complaint  were  untrue  and  known 
to  be  so  when  made,  and  were  made  solely  to  prevent  a 
removal  to  the  Federal  court,  which  allegations  were  not 
denied.  It  was  held  that  the  allegations  in  the  petition  for 
a  removal  required  a  finding  that  the  individual  defendant 
was  fraudulently  joined;  and  hence  the  action,  if  brought 
against  the  railway  company  alone  not  being  removable, 
though  diversity  of  citizeiisliip  existed,  the  cause  was  not  sub- 
ject to  removal.^^ 

§  193.  Joinder  of  action  under  Federal  statute  and  a 
common  law  action. — If  the  plaintiff  joins  a  cause  under 
the  Federal  statute  and  at  common  law  or  under  a  state 
statute,  and  there  be  a  diversity  of  citizenship,  the  defend- 
ant may  successfully  insist  that  the  case  be  removed  to  the 

'« Illinois  Central  R.  Co.  v.  Egan,  Saiek  v.  Pacific  R.  Co.  193  Fed.  303; 

203  Fed.  937;  122  C.  C.  A.  239.  Strau.scr  v.  Chicago,  B.  &  Q.  R.  Co. 

It  ha.s  been  held  that  section  6  as  193  Fed.  293;  Lee  v.  Toledo.  St.  L. 

annended    does    not    apply    to    cases  &  W.  R.  Co.  193  Fed.  68.5;  Ulrich  v. 

l)rought    before    its    amending.      Ft.  New  York,  etc.,  R.  Co.  193  Fed.  768. 

Smith   (t  W.   R.  Co.  V.   Blevins,  35  "  DeAtlev  v.  Chesapeake  &  Ohio 

Okia.  .378;  1.30  Pac.  .52.5.  R.  Co.  20rFed.  .591. 

Several  cases  held  there  could  be  '*  Kelly  v.   Chesapeake  &  O.   Ry. 

no    removal    bcfort;    section    6    \v;i3  Co.  201  Fed.  602. 
amended,      forbidding     a     removal. 


IN  WHAT  COURTS  SUIT  MAY  BE  BROUGHT.  289 

Federal  District  Court;  for  by  such  joinder  he  waives  his 
right  to  insist  that  it  be  tried  in  a  state  court.  So  if  the 
evidence  shows  there  is  no  liability  under  the  Federal  Act, 
as  soon  as  that  fact  appears  the  defendant  may  then  file  a 
petition  for  removal,  and  is  entitled  to  it  if  there  be  a 
diversity  of  citizenship.^'* 

§  194.  Where  actions  must  be  brought. — The  statute  ex- 
pressly declares,  as  amended  in  1910,  where  the  action  must 
be  brought,  viz.:  "In  a  Circuit  [now  District]  Court  of  the 
United  States,  in  the  district  of  the  residence  of  the  defend- 
ant, or  in  which  the  cause  of  action  arose,  or  in  which  the 
defendant  shall  be  doing  business  at  the  time  of  commencing 
such  action."  When  the  action  is  brought  in  a  Federal 
court  the  plaintiff  has  his  option  of  three  places  where  he 
may  bring  it,  viz.:  (1)  in  the  district  of  the  residence  of 
the  defendant;  (2)  or  in  which  the  cause  of  action  arose; 
(3)  or  in  which  the  defendant  shall  be  doing  business  at 
the  time  of  commencing  the  action.  So  far  there  is  no 
difficulty.  But  where  shall  the  action  be  brought  if  brought 
in  a  state  court?  Here  resort  must  be  had  to  the  state  stat- 
utes in  order  to  answer  that  question.  Congress  has  not 
undertaken  to  answer  it.  The  law  applicable  in  this  respect 
to  a  cause  of  action  is  the  same  as  that  applicable  to  any 
other  cause  of  action  brought  against  the  same  defendant.-" 
If  sued  in  a  Federal  court  outside  of  the  district  designated 
above,  the  defendant  may  object,  and  file  a  plea  in  abate- 
ment.^^ 


"  Strother  v.  Union  Pacific  R.  Co.  right  to  bring  the  action  in  a  state 

220  Fed.  731.  court,  it  at  the  same  time  not  only 

-"  No  case  on  this  exact  point  has  adopted  the  state  procedure,  but  also 

come  to  my  notice;  and  I  think  my  the  law  relating  to  the  venue, 
text    states    the    true    rule.      When  -'  Bottoms   v.   St.   Louis   &   S.   F. 

Congress   was   stating   in   section   6,  Ry.   Co.    179   Fed.   318;   Conrad   v. 

where  an  action  might  be  brought,  Atchison,   T.   &   S.   F.    Ry.   Co.    173 

it  had  in  mind  the  bringing  of  the  Fed.  527;  Smith  v.  Detroit  &  T.  S. 

action  in  a  Federal  court,  and  not  in  L.  R.  Co.  175  Fed.  506;  McChesney 

a   state   court.     When   it   gave   the  v.  Illinois  Cent.  R.  Co.  197  Fed.  85. 


CHAPTER  XII. 
PLEADING  AND  PRACTICE. 


SECTION 

SECTION 

195. 

Negligence    of    interstate    car- 

resentative  of   deceased    for 

rier    basis    of    action — Two 

beneficiary — Statute  of  Limi- 

branches  of   statute. 

tations. 

196. 

Wilful  injury. 

207. 

By    what    law    sufficiency    of 

197. 

No  new  right  given  employee. 

complaint  tested. 

198. 

New  cause  of  action  created  for 

208. 

Defense  action  is  governed  by 

benefit  of  beneficiaries. 

Federal  statute. 

199. 

Local   state   practice    controls. 

209. 

Pleading  a  defense — Contribu- 

200. 

Complaint  or   petition  by  em- 

tory negligence. 

ployee. 

210. 

Answer  of  Statute  of   Limita- 

201. 

Allegations    plaintiff    and    de- 

tions. 

fendant    engaged    in    inter- 

211. 

Venue. 

state  commerce. 

212. 

Variance. 

202. 

Complaint  for  beneficiaries. 

213. 

Notice  of  injury  received. 

203. 

Joinder  of  causes  of  action. 

214. 

Dismissal — Non-suit — Direct- 

204. 

Requiring   plaintiff  to   elect. 

ing  verdict. 

205. 

Amendment    of    complaint    to 

215. 

Evidence — Burden. 

fit  the  evidence — Statute  of 

216. 

Competency  of  witness. 

Limitations. 

217. 

Instructions. 

206. 

Substituting  the  personal  rep- 

218. 

Question  for  jury. 

§  195.  Negligence  of  interstate  carrier  basis  of  action — 
Two  branches  of  statute. — The  statute  gives  a  cause  of  ac- 
tion to  an  interstate  employee,  or  to  his  personal  repre- 
sentative for  the  benefit  of  certain  designated  kindred  of 
him,  for  an  injury  or  death  "resulting  in  whole  or  in  part 
from  the  negligence  of  any  of  the  officers,  agents  or  em- 
ployees of"  the  "carrier  or  by  reason  of  any  defect  or 
insufficiency  due  to  its  negligence  in  its  cars,  engines,  ap- 
pliances, machinery,  tracks,  roadbed,  ways  or  works, '"^ 
"This  clause  has  two  branches,"  declared  the  Federal  Su- 
preme Court;  "the  one  covering  the  negligence  of  any  of 
the  officers,  agents  or  employees  of  the  carrier,  which  has 
the  effect  of  abolishing  in  this  class  of  cases  the  common 

'  Section  1  of  act.  The  servant  duty.  Vanordstrand  v.  Northern 
must  be  injured  in  the  line  of  his      P.  Ry.  Co.  (Wash.)  151  Pac.  89. 

290 


PLEADING   AND  PRACTICE.  291 

law  rule  that  exempted  the  employer  from  responsibility 
for  the  negligence  of  a  fellow  employee  of  the  plaintiff ;  and 
the  other  relating  to  defects  and  insufficiencies  in  the  ears, 
engines,  appliances,  etc.  But,  plainly,  with  respect  to  the 
latter  as  well  as  the  former  ground  of  liability,  it  was  the 
intention  of  Congress  to  base  the  action  upon  negligence 
only,  and  to  exclude  responsibility  of  the  carrier  to  its  em- 
ployees for  defects  and  insufficiencies  not  attributable  to 
negligence.  The  common  law  rule  is  that  an  employer  is 
not  a  guarantor  of  the  safety  of  the  place  of  work  or  ma- 
chinery and  appliances  of  the  work;  the  extent  of  its  duty 
to  its  employees  is  to  see  that  ordinary  care  and  prudence 
are  exercised,  to  the  end  that  the  place  in  which  the  work 
is  to  be  performed  and  the  tools  and  appliances  of  the  work 
may  be  safe  for  the  workmen.-  To  hold  that  under  the 
statute  the  railroad  company  is  liable  for  the  injury  or 
death  of  an  employee  resulting  from  any  defect  or  insuf- 
ficiency in  its  cars,  engines,  appliances,  etc.,  however  caused, 
is  to  take  from  the  acts  the  words  'due  to  its  negligence.' 
The  plain  effect  of  these  words  is  to  condition  the  liability 
upon  negligence ;  and  had  there  been  doubt  before  as  to 
the  common  law  rule,  certainly  the  act  now  limits  the  re- 
sponsibility of  the  company  as  indicated."^  In  many  other 
cases  it  is  held  that  the  action  is  based  upon  the  negligence 
of  the  carrier.*    The  negligence  described  in  the  complaint 

2  Citing  Hough  v.  Texas  &  P.  R.  exercise  of  reasonable  care.    In  effect, 

Co.   100  U.  S.  213;  25  L.  Ed.  612;  the    jury    was    instructed    that    the 

Washington  &  G.  R.  Co.  v.  McDade,  absence  of  the  guard  glass  was  con- 

135  U.  S.  554;  34  L.  Ed.  235;  10  Sup.  elusive  evidence  of  defendant's  negli- 

Ct.  1044;  Choctaw,  O.  &  G.  R.  Co.  v.  gence.  In  this  there  was  error." 
McDade,  191  U.  S.  64;  24  Sup.  Ct.  '  Cincinnati,  N.  0.  &  T.  P.  Ry.  Co. 

24;  48  L.  Ed.  96;  15  Am.  Neg.  Rep.  v.  Swann,  160  Ky.  458;  169  S.  W.  886; 

230.  Boston  &  M.  R.  Co.  v.  Benson,  205 

'  Seaboard  Air  Line  R.  Co.  v.  Hor-  Fed.  878;  124  C.  C.  A.  68;  Southern 

ton,  233  U.  S.  492;    34  Sup.  Ct.  635;  Ry.    Co.    v.    Smith,    205    Fed.    360; 

58  L.  Ed.  1062,  reversing  162  N.  C.  Illinois  Central  R.  Co.  v.  Egan,  203 

424;  78  S.  E.  494.  Fed.  937;  122  C.  C.  A.  239;  South 

"The  instructions  above  quoted,"  Covington  &  C.  St.  Ry.  Co.  v.  Finan, 

continued  the  court,  "imposed  upon  153   Ky.   340;    155   S.   W.   742;    St. 

the    employer    an    absolute    respon-  Louis  &  S.  F.  R.  Co.  v.  Fithian,  106 

sibility  for  the  safe  condition  of  the  Ark.   491;   155  S.   W.   88;   IMiller  v. 

appliances   of   the   work,    instead    of  Michigan    Central    R.    Co.    (Mich.) 

limiting    the    responsibility    to    the  152  N.  W.  235;  Missouri,  K.  &  T.  Ry. 


292 


FEDERAL   EMPLOYERS'   LIABILITY   ACT. 


must  be  proven  in  order  to  recover  f  and  the  burden  to 
prove  it  is  on  the  plaintiff.®  The  carrier  is  not  an  insurer 
of  the  safety  of  the  place  where  the  employee  is  required 
to  workj  There  can  be  no  recovery  for  the  act  of  a  fellow 
employee  unless  he  failed  to  discharge  a  duty  he  owed  the 
injured  servant.^  But  contributory  negligence  will  not  de- 
feat the  action.^ 

§  196.  Wilful  injury. — It  is  only  in  case  of  negligence 
that  the  carrier  is  liable  under  the  Federal  statute ;  there- 
fore it  is  not  liable  under  it  for  a  wilful  injury,  nor  for  any 
negligent  injury  not  specified  in  the  statute. ^°  To  recover 
damages  for  such  injuries  the  employee  must  resort  to  the 
law  of  the  state  wherein  the  action  is  brought  or  the  injury 
sustained/^  but  it  has  been  said  that  an  interstate  employee 
no  longer  has  a  right  of  action  to  recover  damages  for  a 
wilful  injury."* 

§  197.  No  new  right  given  employee. — The  employee  is 
not  given  a  new  cause  of  action  by  the  statute  that  did  not 
exist  at  common  law ;  for  the  change  of  the  law  as  to  con- 
tributory negligence,  assumption  of  risk,  and  negligence  of 
fellow  servant  only  withdraws  certain  defenses  and  does 
not  affect  the  right.^-    But  the  action,  in  cases  of  the  em- 


Co.  V.  Binkley  (Tex.  Civ.  App.) 
153  S.  W.  937;  Lloyd  v.  Southern  Rv. 
Co.  166  N.  C.  24;  81  S.  E.  1003; 
Pankey  v.  Atchison.  T.  &  S.  F.  Rv. 
Co.  (Mo.  App.)  168  S.  W.  274;  Neil 
V.  Idaho  &  W.  N.  R.  Co.  22  Idaho,  74; 
125  Pac.  331;  Gekas  v.  Oregon-Wash- 
ington R.  &  Xav.  Co.  (Ore.)  146  Pac. 
970;  Baltimore  &  Ohio  R.  Co.  v. 
Whitacre  (Md.)  92  Atl.  1060;  Willever 
V.  Delaware,  L.  &  W.  R.  Co.  (N.  J.) 
94  Atl.  595;  Staley  v.  Illinois  Cent. 
R.  Co.  (111.)  109  N.  E.  342,  reversing 
186  111.  App.  593;  Southern  Ry.  Co.  v. 
Peters  (Ala.)  69  So.  611;  Walsh  v. 
Lake  Shore  &  M.  S.  Ry.  Co.  fiMich.) 
Hawkins  v.  St.  Louis  &  S.  F.  R.  Co. 
(iMo.)  174  S.  W.  129;  151  N.  W.  754; 
Louisville  &  N.  R.  Co.  v.  Holloway, 
163  Ky.  125;  173  S.  W.  343. 

'  Devine  v.  Chicago,  R.  I.  &  P.  Rv. 
Co.  266  111.  248;  107  N.  E.  505; 
Hobbs  v.  Great  Northern  Ry.  Co. 
80  Wash.  678;  142  Pac.  20;  Bennett 
v.  Southern  Ry.  (S.  C.)  79  S.  E.  710. 

•FLsh  v.  Chicago,  R.  I.  &  P.  Rv. 
Co.  (Mo.)  172  S.  W.  340;  Louisville 
&  N.  R.  Co.  V.  Kemp,  140  Ga. 
657;  79  S.  E.  558. 

'  Hawkins  v.  fit.  Louis  &  S.  F.  R. 
Co.  (Mo.  App.)  174  S.  W.  129. 

«  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 
V.  Swann,  160  Ky.  458;  169  S.  W.  886. 

»  Baltimore  &  O.  R.  Co.  v.  Whit- 
acre (.Md.)  92  Atl.  1060;  Chicago, 
G.  W.  R.  Co.  v.  McCormick,  200  Fed. 
.375;  118  C.  C.  A.  527;  Grand  Trunk 
W.  Ry.  Co.  V.  Lindsay,  201  Fed.  837, 


844;  120  C.  C.  A.  166,  174;  affirmed 
233  U.  S.  42;  34  Sup.  Ct.  581;  58  L. 
Ed.  828;  Louisville  &  N.  Ry.  Co.  v. 
Lankford,  209  Fed.  321;  126  C.  C.  A. 
247;  Pennsylvania  Co.  v.  Cole,  214 
Fed.  948;  Louisville  &  N.  R.  Co.  v. 
Henig,  162  Ky.  14;  171  S.  W.  853; 
Chadwick  v.  Oregon  W.  R.  &  N.  (Ore.) 
144  Pac.  1165;  Heckney  v.  M.  K.  &  T. 
R.  Co.  (Kan.)  149  Pac.  421;  Ross  v. 
St.  Louis  &  S.  F.  R.  Co.  (Kan.)  144 
Pac.  844;  Seers  v.  Atlantic  C.  L.  R. 
Co.  (N.  C.)  86  S.  E.  176;  Fish  v.  Chi- 
cago, R.  I.  &  P.  R.  Co.  (Mo.)  172 
S.  W.  340;  Pittsburgh,  C.  C.  &  St.  L. 
R.  Co.  v.  Farmers'  T.  &  S.  Co.  (Ind.) 
108  N.  E.  108. 

'"  Seaboard  Air  Line  R.  Co.  v. 
Horton,  233  U.  S.  492;  34  Sup.  Ct. 
635;  58  L.  Ed.  — ,  reversing  162  N.  C. 
424;  78  S.  E.  494;  Wabash  R.  Co.  v. 
Hayes,  234  U.  S.  86;  34  Sup.  Ct.  728; 
58  L.  Ed.  1226. 

"  It  necessarily  follows,  it  would 
seem,  that  a  paragraph  of  complaint, 
claiming  damages  because  of  a  wilful 
injury  can  not  be  joined  with  one 
under  tlie  Federal  statute.  Cincin- 
nati, N.  0.  &  T.  P.  Ry.  Co.  v.  Hill 
(Ky.)  170  S.  W.  599. 

"•Staley  v.  Illinois  Cent.  R.  Co. 
(111.)  109  N.  E.  342,  reversing  188 
111.  App.  593,  a  very  doubtful  de- 
cision. 

'-  Burnett  v.  Atlantic  Coast  Line 
R.  Co.  163  N.  C.  186;  79  S.  E.  414; 
Garrett  v.  Railroad,  197  Fed.  715; 
117  C.  C.  A.  109;  Rains  v.  Southern 


/^  _     /  M    r^ 


oc  a    t:^    on « 


PLEADING   AND   PRACTICE.  293 

ployee,  as  well  as  of  the  claims  of  the  beneficiaries,  must  be 
based  upon  the  statute/^ 

§  198.  New  cause  of  action  created  for  benefit  of  bene- 
ficiaries.— As  the  cause  of  action  in  an  injured  person  died 
with  his  death  and  no  recovery  could  be  had  either  by  his 
administrator  or  those  dependent  upon  him  for  support,  it 
follows  that  the  right  of  action  given  by  the  Federal  statute 
for  the  benefit  of  certain  designated  persons  is  a  new  action, 
one  created  by  the  statute,  one  that  does  not  exist  except 
as  the  statute  provides.  Thus  in  an  English  case,  quoted 
with  approval  by  the  Supreme  Court  of  the  United  States,^* 
it  was  said:  "It  will  be  evident  that  this  act  does  not  trans- 
fer this  [the  deceased's]  right  of  action  to  his  representa- 
tive, but  gives  to  the  representative  a  totally  new  right  of 
action,  on  different  principles.  "^^  This  is  the  consensus  of 
all  the  cases.^® 

§  199.    Local  state  practice  controls. — The  practice  in  the 

state  court  of  the  locality  where  the  action  is  brought  prevails, 
both  where  the  action  is  brought  in  a  state  court^'   and  in  a 

"  Louisville  &  N.  R.  Co.  v.  Kemp,  v.   Philadelphia   &    R.    Ry.   Co.   209 

140  Ga.  657;  79  S.  E.  558;  Missouri,  Fed.  975;  Missouri,  K.  &  T.  Ry.  Co.  v. 

K.  &  T.  Ry.  Co.  V.  Lenahan,  39  Okla.  Lenahan,  39  Okla.  283;  135  Pac.  383; 

283;  135  Pac.  383.  Louisville  &  N.  R.  Co.  v.  Kemp,  140 

1^  Michigan     Central     R.     Co.    v.  Ga.  657;  79  S.  E.  558:  St.  Louis,  I. 

Vreeland,  227  U.  S.  59;  33  Sup.  Ct.  M.  &  So.  Rv.  Co.  v.  Craft,  35  Sup. 

192;  57  L.  Ed.  417,  reversing  189  Fed.  Ct.  704,   affirming   (Ark.)   171  S.  W. 

495.  1185.      But    by    the    amendment   of 

'^  Blake    v.    Midland    R.    Co.    18  1910  the  deceased's  cause  of  action  is 

Q.  B.  93.  now  transferred  to  his  administrator 

"A  totally  new  action  is  given  for  the  benefit  of  his  heirs, 
against  the  person  who  would  have  i'  Chesapeake  &  Ohio  Ry.  Co.  v. 
been  responsible  to  the  deceased  if  Kelly,  161  Ky.  655;  171  S.  W.  185; 
the  deceased  had  lived — an  action  Louisville  &  N.  R.  Co.  v.  Stewart, 
which  *  *  *  is  new  in  its  species,  156  Ky.  550;  161  S.  W.  557;  Louis- 
new  in  its  quality,  new  in  its  principle,  ville  &  N.  R.  Co.  v.  Holloway  (Ky.) 
in  every  way  new,  and  which  can  173  S.  W.  343;  Lloyd  v.  Southern  Ry. 
only  be  brought  if  there  is  any  per-  Co.  166  N.  C.  24;  81  N.  E.  1003; 
son  answering  the  description  of  the  Sweet  v.  Chicago  &  N.  W.  Ry.  Co. 
widow,  parent  or  child,  who,  under  157  Wis.  400;  147  N.  W.  1054; 
such  circumstances,  suffer  pecuniary  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 
loss."  Seward  v.  The  Vera  Cruz  v.  Swann,  160  Ky.  458;  169  S.  W. 
L.  R.  10  App.  Gas.  59.  886;  McCoullough  v.  Chicago,  R.  I. 

"  McCoullough  V.  Chicago,  R.  I.  &  P.  Rv.  Co.  160  Iowa,  452;  142  N. 

&  P.  Ry.  Co.  160  Iowa,  524;  142  N.  W.  67;  Central  Vt.  R.  Co.  v.  White, 

W.  67;  St.  Louis,  S.  F.  &  T.  Ry.  Co.  35  Sup.  Ct.  865;  affirming  87  Vt.  330; 

V.  Seale,  229  U.  S.  156;  33  Sup.  Ct.  89  Atl.   618;   Norfolk  So.  R.  Co.  v. 

651;  57  L.  Ed.  1129,  reversing  (Tex.  Ferebee,   35  Sup.   Ct.  781,  affirming 

Civ.  App.)  149  S.  W.  1099;  McGovern  167  N.  C.  290;  83  S.  E.  360. 


294  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

Federal  court. ^^  Thus  if  the  local  practice  requires  the 
defense  of  assumption  of  risk  to  be  specially  pleaded,  then 
in  an  action  under  the  Federal  statute  it  must  be  pleaded 
to  be  available  as  a  defense.^^  This  is  further  illustrated 
by  a  Kentucky  case  where  it  was  held  that  the  practice  of 
the  Federal  courts  to  direct  a  verdict  when  the  evidence 
preponderates  in  favor  of  one  party,  though  there  be  a 
scintilla  of  evidence  to  the  contrary,  does  not  prevail  when 
the  action  is  brought  in  the  state  court.^°  This  is  still  fur- 
ther illustrated  in  a  Minnesota  case.  In  that  state  it  was 
held  that  a  quotient  verdict,  as  the  state  statute  provided, 
could  be  allowed,  notwithstanding  the  action  was  based  on 
the  Federal  Act  and  if  the  action  had  been  brought  in  the 
Federal  court  a  unanimous  verdict  would  have  been  neces- 
sary.^^ The  rule  regarding  amendments  is  also  controlled 
by  the  local  practice ;--  and  if  a  general  allegation  of  negli- 
gence is  sufficient  in  the  state  courts  in  actions  for  negli- 
gence generally,  then  it  is  sufficient  in  an  action  on  the  Fed- 
eral Act.-^  And  it  has  been  held  that  the  sufficiency  of  the 
evidence  to  make  out  a  case  under  the  Federal  Act  must  be 
determined  by  rule  as  to  such  sufficiency  under  the  state 
practice.-*  So  there  will  be  no  reversal  of  a  case  where  a 
local  statute  forbids  one  unless  there  be  error  affecting  the 
merits  of  the  action.-^ 

§  200.     Complaint  or  petition  by  employee. — It  is  not  nec- 
essary to  plead  the  act  in  order  to  show  that  the  action  is 

"  Thomas  v.  Chicago  &  N.  W.  Ry.       Ry.  Co.  126  Minn.  2G0;  148  N.  W.  106; 

Co.  202  Fed.  766;  Bankson  v.  Illinois       Bombolis  v.  Minneapolis  &  St.  L.  R. 

Central  R.  Co.   196  Fed.   171;   New       Co.  (Minn.)  150  N.  W.  385.    Not  so 

York,  N.  H.  &  H.  II.  R.  Co.  v.  Vizvori,       in  Federal  Court.    Gibson  v.  Belling- 

210   Fed.    118;    126   C.    C.    A.    632;       ham  &  N.  Ry.  Co.  213  Fed.  488. 

Canadian   Pacific  Ry.  Co.  v.  Clark,  -^  McAdow  v.  Kansas  City  W.  Ry. 

73  Fed.  76;  74  Fed.  362;  20  C.  C.  A.      Co.    (Mo.    App.)    164    S.    W.     188; 

447.  Briiikmeir  v.  Missouri  Pac.  Ry.  Co. 

'"Lloyd   V.  Southern   Ry.  Co.  (N.      224  U.  S.  268;  32  Sup.  Ct.  412;  56 

C);    81     S.    E.    1003;    New    York,      L.   Ed.  758,  affirming  81   Kan.   101; 

N.  H.  &   M.   R.   R.   Co.  V.  Vizvori,      10.5  Pac.  221;  Central  Vt.  R.  Co.  v. 

210  Fed.  118;  126  C.  C.  A.  632.  White,  35  Sup.  Ct.  865,  affirming  87 

"  Louisville  &  N.  R.  Co.  v.  Hollo-      vt  330;  89  Atl.  618;  Knapp  v.  Creat 

way  (Ky.)  173  S.  W.  343.  Northern  Ry.  Co.  (Alinn.)  153  N.  W. 

**  Winters  v.  Minneapolis  &  St.  L.      gis. 

'^'■'  Louisville  &  N.  R.  Co.  v.  Stewart, 
156  Ky.  550;  161  S.  W.  557. 

'^*  Bennett  v.  Southern  Ry.,  Caro- 
lina Division  (S.  C.)  79  S.  E.  710. 

■-'■  Mcintosh  v.  St.  Louis  &  S.  F. 
R.  Co.  182  Mo.  App.  288;  108  S.  W. 
821. 


PLEADING  AND  PRACTICE,  295 

based  upon  it ;  nor  is  any  reference  to  the  provisions  of  the 
act  necessary.-''  It  is  sufficient  if  the  complaint  show  that 
the  defendant  and  the  employee  were  both  engaged  in  inter- 
state commerce  at  the  time  he  received  his  injury ;  and  when 
that  is  done  the  court  will  measure  the  plaintiff's  right  to 
recover  and  the  defendant's  liability  for  damages  by  the 
terms  of  the  statute.-"  It  has  been  suggested  that  if  the 
declaration  or  complaint  does  not  disclose  whether  the  ac- 
tion is  based  upon  the  statute  or  not — or  whether  it  is 
grounded  upon  the  statute  or  the  general  law  of  negligence 
— it  is  demurrable  on  the  ground  that  no  cause  of  action  is 
stated.  But  this  position  is  untenable.  The  question  of  the 
jurisdiction  of  a  Federal  court  is  always  present  throughout 
the  entire  proceedings,  except  where  there  has  been  a  waiver 
over  the  person.  It  may  be  presented  at  any  time.  While  its 
jurisdiction  is  general  in  one  sense  of  the  word,  in  another 
it  is  limited.  The  true  rule  is  that  if  the  declaration  or 
complaint  does  not  disclose  the  action  is  based  or  grounded 
upon  the  statute,  then  the  plaintiff^  is  not  seeking  to  recover 
for  an  injury  received  while  engaged  in  the  interstate  traf- 
fic of  the  defendant  and  the  sufficiency  of  his  pleading  must 
be  measured  by  the  general  state  law,  the  provisions  of  the 
statute  not  being  involved.-®    However,  if  the  evidence  dis- 

2«McChesney    v.    Illinois    Central       105  Pac.  221;  Missouri,  etc.,  R.  Co.  v. 
R.  Co.  197  Fed.  85;  Tralich  v.  Chi-      Wulf,  226  U.  S.  570;  33  Sup.  Ct.  135; 


cago,  M.  &  St.  P.  Ry.  Co.  217  Fed 
675;  Garrett  v.  Louisville  &  N.  R 
Co.  197  Fed.  718;  117  C.  C.  A.  109: 
Kelly  V.  Chesapeake  &  Ohio  Ry.  Co 
210  Fed.  602;  St.  Louis,  etc.,  R.  Co 
V.  Hesterly,  90  Ark.  240;  135  S.  W 
874;  Bradbury  v.  Chicago,  etc.,  R 
Co.    149    Iowa    51;    128    N.    W.    1 


57  L.  Ed.  274;  Ullrich  v.  New  York, 
etc.,  R.  Co.  193  Fed.  768;  Cound  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.  173  Fed. 
527;  Whittaker  v.  Illinois,  etc.,  R. 
Co.  176  Fed.  130;  Smith  v.  Detroit, 
etc.,  R.  Co.  175  Fed.  506;  Clark  v. 
Southern  Pacific  R.  Co.  175  Fed.  122; 
Erie  R.  Co.  v.  Kennedy,  191  Fed.  332; 


Kansas  City  So.  R.  Co.  v.  Cook,  100  112  C.  C.  A.  76. 
Ark.  467;  140  S.  W.  579;  St.  Louis  &  =8  Atkinson  v.  Bullard  (Ga.  App.) 

S.  F.  R.  Co.  V.  Snowder  (Okla.)  149  80  S.  E.   220;   Southern  Ry.  Co.  v. 

Pac.  1083.  Ansley,  8  Ga.  App.  325;  68  S.  E.  1086; 

"'  Vandalia  R.  Co.  v.  Stringer  (Ind.)  St.  Louis,  S.  F.  &  T.  Ry.  Co.  (Tex. 

106  N.  E.  865;  Erie  R.  Co.  v.  Welsh  Civ.  App.)  148  S.  W.  1099;  St.  Louis 

(Ohio)   105  N.  E.  189;  St.  Louis,  I.  &  S.  F.  R.  Co.  v.  Cox  (Tex.  Civ.  App.) 

M.    &    S.    Rv.  Co.    V.    Hesterly    98  159  S.  W.   1042;  St.   Louis,  etc.,  R. 

Ark.   240;   135  S.   W.  874;  Allen  v.  Co.   v.   Seale    (Tex.   Civ.   App.)    148 

Tuscarora  Vallev  R.  Co.  229  Pa   St  S.  W.   1099;   Missouri,   etc.,   R.   Co. 

97;  78  Atl.  34;  "^30  L.  R.  A.  (N    S)  v.  Neaves  (Tex.  Civ.  App.)   127  N. 
1096;   140  Am.  St.  714;  Brinkmeier 
V.  Missouri  Pac.  Ry.  Co.  81  Kan.  101; 


296 


FEDERAL  EMPLOYERS'   LIABILITY   ACT. 


closes  the  case  is  one  under  the  statute  there  will  be  a  fatal 
variance  and  the  plaintiff  must  fail.-^  If  the  plaintiff  un- 
dertakes to  plead  the  statute,  either  state  or  Federal,  an 
erroneous  reference  to  the  one  in  a  cause  of  action,  which 
if  sustained  at  all,  would  legally  rest  upon  the  other,  will 
not  render  the  pleading  insufficient,  but  the  erroneous  ref- 
erence to  the  statute  may  be  stricken  out  as  surplusage,  and 
if  there  then  be  enough  left  to  state  a  cause  of  action  under 
the  statute  actually  applicable  the  case  may  proceed  to  judg- 
ment accordingly.  Instead  of  following  this  practice  the 
plaintiff  may  amend,  subject  to  the  rule  of  introducing  a 
new  cause  of  action  by  amendment,  to  bring  himself  within 
the  applicable  statute.^"  But  before  there  can  be  a  recovery 
under  the  Federal  statute  there  must  be  facts  enough  alleged 
to  bring  the  case  within  its  provisions.^^  If  the  plaintiff  does 


W.  1090;  Bradbury  v.  Chicago,  etc., 
R.  Co.  149  Iowa  51;  128  N.  W.  1; 
Thomas  v.  Chicago,  etc.,  R.  Co. 
202  Fed.  766;  Missouri,  K.  &  T.  Ry. 
Co.  V.  Hawley  (Tex.  Civ.  App.)  123 
S.  W.  726. 

^^  This  section  was  approved  in 
ISIissouri,  K.  &  T.  Ry.  Co.  v.  Haw- 
ley (Tex.  Civ.  App.),  123  S.  W.  726, 
and  in  Moliter  v.  Wabash  R.  Co. 
(Mo.  App.);  168  S.  W.  250.  See 
also  McAdow  v.  Kansas  City  W. 
Ry.  Co.  (Mo.  App.)  164  S.  W.  188. 

But  amendments  to  conform  to  the 
evidence  in  this  respect  have  been  al- 
lowed. Central  Vt.  R.  Co.  v.  White, 
35  Sup.  Ct.  865,  affirming  87  Vt.  330; 
89  Atl.  618;  Knapp  v.  Great  Northern 
R.  Co.  (Minn.)  153  N.  W.  848. 

Where  the  petition  alleges  a  cause 
of  action  under  this  statute  it  will 
be  so  constructed,  though  it  does  not 
mention  the  act  or  state  that  the 
action  is  intended  to  be  brought  tliere- 
under.  Smith  v.  Detroit  &  T.,  S.  L. 
R.  Co.  175  Fed.  506;  Cound  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.  173 
Fed.  527.  It  should  show  that  the 
plaintiff  and  defendant  were  engaged 
in  interstate  commerce  at  the  time  of 
the  injury.  The  precise  nature  of  the 
defect  causing  the  injury  need  not  be 
shown.  Norfolk  &  W.  R.  Co.  v. 
Hazelrigg,  184  Fed.  828;  107  C.  C.  A. 
66. 

In  one  case  in  Texas  it  has  been 
held  that  whether  the  defendant  was 
engaged  in  interstate  commerce  or 
intrastate  commerce  at  the  time  of 


the  injury  being  peculiarly  within 
its  knowledge,  the  plaintiff  is  not 
required  to  allege  such  fact  with  that 
certainty  required  as  to  facts  within 
his  own  knowledge.  Missouri,  K. 
&  T.  Ry.  Co.  V.  Hawley  (Tex.  Civ. 
App.)  123  S.  W.  726.  In  this  case 
facts  were  so  alleged  as  to  show  the 
action  was  by  an  intrastate  employee 
against  an  interstate  railway  com- 
pany. 

3»  Missouri,  etc.,  R.  Co.  v.  Wulf, 
226  U.  S.  57;  33  Sup.  Ct.  135;  57  L. 
Ed.  274,  affirming  192  Fed.  919;  113 
C.  C.  A.  665;  Carpenter  v.  Kansas 
C.  S.  Ry.  Co.  (Mo.)  175  S.  W.  234. 

^'  Bradburj'^  v.  Chicago,  etc.,  R.  Co. 
149  Iowa  51;  128  N.  W.  1;  Southern 
R.  Co.  V.  Ansley,  8  Ga.  App.  325; 
68  S.  E.  1086;  Walton  v.  Southern  R. 
Co.  179  Fed.  175;  Thomas  v.  Chicago, 
etc.,  R.  Co.  202  Fed.  706;  Missouri, 
etc.,  R.  Co.  v.  Hawley  (Tex.  Civ. 
App.)  123  S.  W.  726;  Missouri,  etc., 
R.  Co.  V.  Neaves  (Tex.  Civ.  App.) 
127  S.  W.  1090;  Whittakor  v.  Illinois, 
etc.,  R.  Co.  176  Fed.  130;  Tsmura 
V.  Great  Northern  R.  Co.  58  Wash. 
316;  108  Pac.  774. 

It  must  be  alleged  that  the  de- 
fendant was  a  common  carrier  by 
railroad.  Shade  v.  Northern  Pacific 
Ry.  Co.  206  Fed.  353. 


PLEADING  AND   PRACTICE. 


297 


not,  in  his  pleading,  claim  the  right  to  recover  under  the 
Federal  statute,  then  he  will  not  he  ahle  to  present  on  ap- 
peal or  by  writ  of  error  any  question  that  might  have  arisen 
under  it."-  If  the  plaintiff  desires  to  avail  himself  of  the 
provisions  of  the  Federal  Act,  then  he  has  the  burden  to 
allege  and  prove  that  he  comes  within  its  terms.^^ 

§  201.  Allegations  plaintiff  and  defendant  engaged  in 
interstate  commerce. — To  recover  under  the  statute  it  must 
be  shown  by  the  pleading  that  the  employee-plaintiff  was 
at  the  time  of  his  injury  engaged  in  interstate  commerce, 
and  also  tliat  tlie  defendant  was  a  common  carrier  by  rail- 
road at  the  same  time,  in  the  transaction  wherein  the  em- 
ployee was  injured,  likewise  engaged  in  interstate  com- 
merce. This  may  be  done  by  a  direct  averment,  or  by  the 
pleading  of  facts  which  show  such  is  the  fact.^*     If  the  action 


^^  Chicago,  etc.,  R.  Co.  v.  Hackett, 
228  U.  S.  559;  33  Sup.  Ct.  581;  57 
L.  Ed.  966;  Smith  v.  Northern  Pacific 
Ry.  Co.  79  Wash.  448;  140  Pac.  685. 

^^  Tsmura  v.  Great  Northern  R.  Co. 
58  Wash.  316;  108  Pac.  774;  St. 
Louis,  etc.,  R.  Co.  v.  Hesterly,  98 
Ark.  240;  135  S.  W.  874;  Bradbury 
V.  Chicago,  etc.,  R.  Co.  149  Iowa  51; 
128  N.  W.  1;  Hench  v.  Pennsylvania 
R.  Co.  (Pa.)  91  Atl.  1056;  Knowles 
V.  New  York,  N.  H.  &  H.  R.  R.  Co. 
164  App.  Div.  — ;  150  N.  Y.  Supp.  99; 
Bay  V.  Merrill  &  Ring  Lumber  Co. 
211  Fed.  717. 

Where  the  action  was  one  of  com- 
mon law,  a  replication  alleging  that 
it  was  under  the  Federal  statute  was 
held  to  bring  the  action  under  the 
statute.  Niles  v.  Central  Vt.  Ry.  Co. 
87  Vt.  356;  89  Atl.  629;  White  v. 
Central  Vt.  Ry.  Co.  87  Vt.  330;  89 
Atl.  618,  affirmed  35  Sup.  Ct.  865. 

Where  no  reference  was  made  to 
any  statute  it  was  held  that  a  motion 
to  make  the  complaint  more  specific 
and  definite  lay.  Mcintosh  v.  St. 
Louis  &  S.  F.  R.  Co.  182  Mo.  App. 
288;  168  S.  W.  821.  But  this  was 
where  the  railroad  desired  to  inter- 
pose the  defense  that  the  action  was 
under  the  Federal  Act.  Mims  v. 
Atlantic  C.  L.  R.  Co.  (S.  C.)  85  S.  E. 
372. 

Where  the  complaint  was  in- 
sufficient under  the  Federal  Act,  yet 
the  evidence  showed  that  act  con- 
trolled,  it  was  held  that  the  court 


would  treat  the  act  as  applicable. 
St.  Louis.  I.  M.  &  S.  Ry.  Co.  v. 
Coke  (Ark.)  175  S.  W.  1177,  citing 
Toledo,  etc.,  Ry.  Co.  v.  Slavin,  236 
U.S.  457;  35  Sup.  Ct.  306;  59  L.  Ed. 
— ;  Mims  v.  Atlantic  C.  L.  R.  Co. 
(S.  C.)  85  S.  E.  372. 

The  complaint  must  show  that  the 
servant  was  injured  when  in  the  line  of 
his  duty.  Louisville  &  N.  R.  Co.  v. 
Fleming  (Ala.)  69  So.  125. 

3^  Walton  V.  Southern  Ry.  Co.  179 
Fed.  175;  St.  Louis,  etc.,  R.  Co.  v. 
Hesterly,  98  Ark.  240;  135  S.  W.  874; 
Tsmura  v.  Great  Northern  R.  Co. 
58  Wash.  316;  108  Pac.  774;  Bay  v. 
Merrill  &  Ring  Lumber  Co.  211  Fed. 
717;  Betondo  v.  New  York  Central 
&  H.  R.  R.  Co.  149  N.  Y.  Supp.  339; 
Smith  V.  Northern  Pac.  Ry.  Co.  79 
Wash.  448;  140  Pac.  685;  Erie  R.  Co. 
V.  Welsh  (Ohio)  105  _  N.  E.  189; 
Brinkmeier  v.  Missouri  Pacific  Ry. 
Co.  81  Kan.  101;  105  Pac.  221;  Allen 
V.  Tuscarora  Valley  R.  Co.  229  Pa. 
97;  78  Atl.  34;  30  L.  R.  A.  (N.  S.) 
1096;  140  Am.  St.  714;  St.  Louis  & 
S.  F.  R.  Co.  V,  Snowden,  149  Pac. 
1083;  Peek  v.  Boston  &  M.  R.  Co. 
223  Fed.  448. 

Where  the  complaint  failed  to 
allege  the  plaintiff  was  engaged  in 
interstate  commerce,  but  the  answer 
did,  it  was  held  that  the  answer  in 
this  respect  aided  the  complaint. 
White  V.  Central  Vermont  Ry.  Co. 
87  Vt.  330;  89  Atl.  618.  See  also 
St.  Louis,  I.  M.  &  S.  R.  Co.  (Ark.) 
171  S.  W.  95. 


298  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

be  brought  in  the  Federal  court,  and  no  diversity  of  citizen- 
ship be  shown,  and  no  allegations  be  made  showing  that  both 
the  plaintiff  and  defendant,  at  the  time  plaintiff  was  in- 
jured were  engaged  in  interstate  commerce,  the  court  will 
not  have  jurisdiction  of  the  cause.^^  "Where  the  complaint 
alleged  that  the  railway  carrier  was  a  domestic  corporation 
operating  a  railroad  from  and  to  various  points  in  the  state, 
that  the  employees  assisted  other  employees  in  repairing 
a  bridge  forming  a  part  of  the  roadbed,  and  that  while  so 
engaged,  the  employee  was  injured  by  the  negligence  of 
the  defendant,  but  did  not  refer  to  any  statute  as  the  basis 
of  the  action,  it  was  held  that  it  stated  a  cause  of  action 
under  the  Federal  statute  as  against  the  single  objection 
that  the  complaint  did  not  allege  that  the  railway  carrier 
was  engaged  in  interstate  commerce.  "It  is  common  knowl- 
edge that,"  said  the  court,  "under  the  large  meaning  of 
interstate  commerce  given  by  the  courts,  every  railroad, 
however  short  its  own  line,  engages  in  interstate  commerce 
in  handling  freight  or  passengers  destined  to  a  point  in 
another  state,  whether  such  point  of  destination  is  reached 
by  its  own  line  or  through  connecting  carriers.  All  rail- 
roads in  this  state  are,  in  fact,  required  to  engage  in  inter- 
state commerce.^'^  As  these  hold  [in  the  case  cited  below], 
it  is  not  necessary  to  specifically  allege  that  a  railroad  is 
engaged  in  interstate  commerce  in  order  that  the  court  take 
knowledge  that  an  act  of  Congress  regulating  interstate 
commerce  is  applicable  thereto.  Yet  the  lack  of  such  al- 
legation is  the  only  defect  suggested  in  this  petition."" 
The  special  facts  alleged  in  the  petition  should  be  noted  in 
considering  this  case.  The  plaintiff  was  working  on  a  bridge 
of  the  defendant  located  on  its  right  of  way,  and  having  re- 
moved some  timbers  from  it  was  unloading  them,  when  one 
of  them  fell,  because  of  the  carelessness  of  a  fellow  servant, 


3'  Walton  V.  Southern  R.  Co.  179  R.  Co.  1S2  Mo.  App.  288;  168  S.  W. 

Fed.  175.  821. 

'"  Citing  State  v.  Railroad,  212  I\Io.  It  may  be  well  doubted  if  this  case 

658;  Ills.  W.  .500.  will   be  accepted  as  sound  in  other 

"Mcintosh   V.  St.  Louis  &  S.   F.  states. 


PLEADING  AND   PRACTICE.  299 

crushing  his  foot.  This  was  an  employment  in  repairing  the 
defendant's  right  of  way,  and  the  court  very  sensibly  took 
judicial  notice  that  the  right  of  way  of  all  railroad  com- 
panies are  devoted  to  uses  in  interstate  traffic.  The  court 
in  taking  judicial  notice  that  a  railroad  wholly  within  a 
state  hauls  over  its  roadbed  and  bridges  interstate  traffic 
only  took  notice  of  what  is  universally  known ;  and  brought 
to  the  solution  of  the  question  involved  simply  common 
sense.^^  If  the  injury  had  been  inflicted  by  a  train  or  a 
defective  car  in  the  train,  then  another  entirely  different 
question  would  have  been  presented ;  for  there  might  not 
have  been  a  car  in  the  train  carrying  any  interstate  traffic, 
and  therefore  the  case  not  coming  under  the  Federal  stat- 
ute. But  not  all  the  courts  have  been  as  liberal  as  the 
Missouri  court,  as  we  shall  now  see.  A  complaint  alleging 
that  the  "defendant  was  a  railroad  corporation  operating  a 
line  of  railroad  in  the  state  of  Oklahoma,  and  was  *  *  * 
a  common  carrier  of  freight  and  passengers  for  hire"  in 
that  state,  but  which  did  not  allege  that  it  was  engaged  in 
interstate  commerce,  or  that  the  deceased  was  injured  while 
employed  by  it  in  connection  with  such  commerce,  was 
held  insufficient  to  show  a  cause  of  action  under  the  Fed- 
eral Act.^*^  An  allegation  that  "at  the  time  of  the  inju- 
ries hereinafter  complained  of  your  petitioner  was  en- 
gaged in  the  transportation  of  interstate  commerce"  does 
not  show  that  the  defendant  was  a  common  carrier  engaged 
in  interstate  commerce  by  railroad."*"  So  a  complaint  al- 
leging that  the  servant-plaintiff  was  injured  while  loading 
rails  on  a  flat  car,  caused  by  the  negligence  of  fellow  ser- 
vants, but  not  alleging  whether  the  rails  were  old  or  new, 
where  they  came  from,  where  they  were  to  be  taken,  nor 
even  where  the  car  was  to  go  when  loaded,  was  held  not  to 
show  a  cause  of  action  under  the  Federal  Act.*^     Turning 

^^  See    remarks    of    Judge    Cooley  ^^  Walton    v.    Southern    Ry.    Co. 

quoted  in  note  12*  to  section  34.  179  Fed.  175. 

'^  St.  Louis,  etc..  R.  Co.  v.  Hesterly,  ^'  Tsmura   v.   Great   Northern   R. 

98  Ark.  240;  135  S.  W.  874.    Contra,  Co.  58  Wash.  316;  108  Pac.  774. 
Illinois  Central  R.  Co.  v.  Rogers,  221 
Fed.  52. 


300  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

now  to  instances  M^here  the  allegations  concerning  interstate 
commerce  have  been  held  sufficient  we  find  that  where  the 
petition  alleged  that  the  deceased  was  killed  while  em- 
ployed by  the  defendant  in  interstate  commerce,  that  de- 
fendant was  engaged  in  such  commerce,  and  that  the  de- 
cedent's death  resulted  from  the  negligence  of  the  defend- 
ant's servants,  and  the  defective  condition  of  its  roadbed 
and  the  engine  he  was  required  to  use,  it  was  held  that  it 
sufficiently  stated  a  cause  of  action  within  the  Federal  Act.''^ 
And  where  it  was  alleged  that  the  defendant  was  a  Mis- 
souri corporation  engaged  as  a  common  carrier  of  commerce 
between  that  state,  Kansas,  Arkansas  and  Texas,  that  plain- 
tiff was  employed  at  the  time  of  his  injury  as  a  swing  brake- 
man  on  a  local  freight  train  running  from  Texas  into  Ar- 
kansas, it  was  held  that  it  was  sufficiently  shown  that  the 
injury  occurred  while  he  and  the  defendant  were  engaged  in 
interstate  commerce ;  the  allegation  being  plainly  to  the 
effect  that  the  train  was  running  from  the  state  of  Texas 
into  the  state  of  Arkansas,  it  was  immaterial  that  the  train 
was  described  as  a  local  train,  and  without  a  specific  allega- 
tion that  it  was  then  carrying  consignments  across  the  state 
line.  It  was  said  that  the  mere  operation  of  the  train  across 
the  state  line  for  the  purpose  of  carrying  such  interstate 
shipments  as  might  be  offered  w^as  of  itself  interstate  com- 
merce without  regard  to  whether  it  did  actually  carry  any 
shipments  of  that  character  upon  that  particular  trip  or 
not.'*^  In  this  same  case  it  was  also  held  that  it  was  not 
necessary  to  aver  that  the  particular  defective  car  causing 
the  injury  was  one  used  in  interstate  traffic,  because  it  con- 
stituted a  part  of  the  train  at  the  time  of  the  injury  and 
he  was  then  engaged  in  discharging  his  duties  in  operating 
a  train  engaged  in  intei'state  commerce,  and  allegations  to 
that  effect  were  sufficient.'*  Where  the  declaration  charged 
that  at  the  time  of  the  decedent's  injury  the  defendant 
owned  and  o[)('rat('d  a  rjiilioad  as  a  common  carrier  in  inter- 

*-  Kollv  V.  Chesapeake  <t  Oliio  Uy.  ■•■'  Kansas    etc.,    T{.    Co.   v.   Cook, 

Co.  201  Fed.  G02.  100  Ark.  407;  140  S.  W.  579. 

"  Ibid. 


PLEADING   AND   PRACTICE.  3OI 

state  commerce,  and  among  other  things  conducted  a  station 
and  freight  yard  at  or  near  Lakeland  in  Florida ;  that  on  a 
date  named  the  decedent  served  as  a  switchman  in  such  yard, 
and  was  required  by  the  defendant  in  discharge  of  his  duty 
in  the  moving  of  certain  cars  in  the  yard,  to  uncouple  the 
cars  attached  to  an  engine  operated  by  defendant's  em- 
ployees ;  and  that  the  engine  was  kept  and  employed  at  such 
point  in  the  switching  and  moving  of  intrastate  and  inter- 
state commerce  as  circumstances  required,  it  was  held  that 
the  declaration  sufficiently  alleged  that  at  the  time  of  the 
decedent's  injury  both  he  and  the  defendant  were  engaged 
in  interstate  commerce.*^  So  where  a  complaint  alleged 
that  the  defendant  owned  and  operated  an  interstate  system 
of  railways,  with  several  branches,  engaged  in  interstate 
commerce  between  the  several  states  from  Minnesota  to 
Puget  Sound  and  Oregon,  and  that  one  of  the  branches  ex- 
tended out  of  the  city  of  Tacoma  southeasterly,  on  which 
the  accident  to  the  employee  happened,  it  was  held  that  it 
sufficiently  alleged  that  the  branch  line  on  which  the  acci- 
dent happened  was  used  in  carrying  on  interstate  com- 
merce/*' Whether  the  defendant  was  engaged  in  intrastate 
or  interstate  commerce  at  the  time  being  a  matter  peculiarly 
within  the  defendant's  knowledge,  the  plaintiff  is  not  re- 
quired to  allege  such  facts  with  the  certainty  required  as  to 
facts  within  his  own  knowledge/"* 

§  202.  Complaint  for  beneficiaries. — It  is  clear  that  the 
complaint  or  declaration  must  show  that  persons  were  alive, 
at  least  at  the  time  of  the  death  of  the  injured  person,  who 
come  within  some  one  of  the  clauses  of  the  statute,  and  who 
would  be  entitled  to  the  damages  recovered  and  their  names 
must  be  given;*''  and  these  facts  must  be  supported  by  proof/® 

^5  Atlantic   Coast  Line   R.   Co.   v.  ■"  Illinois  Central  R.  Co.  v.  Porter, 

Reaves,  208  Fed.  141;  125  C.  C.  A.  207  Fed.  311;  125  C.  C.  A.  55. 

599.  ^8  This    is     a     jurisdictional    fact. 

^^  Smith  V.  Northern  Pac.  Ry.  Co.  Melzner   v.    Northern    Pac.    R.    Co. 

79  Wash.  448;  140  Pac.  685.  46  Mont.  277;  127  Pac.  1002;  Thomas 

«*  Missouri,  K.  &  T.  Rv.  Co.  v.  v.  Chicago,  etc.,  R.  Co.  202  Fed.  766; 

Hawley  (Tex.  Civ.  App.)  123  S.  W.  Illinois  Central  P.  Co.  v.  Dohertv,  153 

726.  Ky.363;  155  S.W.  1119;  Chesapeake  & 


302 


FEDERAL   EMPLOYERS'    LIABILITY   ACT. 


If  the  names  of  those  entitled  to  share  in  the  damages  be 
given,  it  is  not  necessary  to  show  there  are  no  such  others.*^ 
But  if  the  action  be  for  the  benefit  of  a  parent,  it  must  be 
alleged  that  the  deceased  left  neither  wife  nor  children.^" 
It  is  necessary  to  allege  facts  showing  a  pecuniary  loss  to  the 
beneficiaries.^^  It  need  not  be  averred  that  there  was  an 
immediate  death,  an  averment  of  a  mediate  death  being  suf- 
ficient.^^ The  complaint  must  show  the  plaintiff's  capacity 
to  sue.^^  It  must  also  show  the  same  facts,  except  the  mat- 
ter of  damages,  the  deceased  would  have  been  required  to 
allege  if  he  had  when  alive  brought  a  suit  to  recover  dam- 
ages for  the  same  injury.''"  It  need  not  be  alleged  that  the 
damages  had  not  been  paid.''^  It  must  be  shown  that  the 
injured  person  had  died;"-  but  it  need  not  necessarily  be 
proven  of  the  precise  date  alleged  when  it  took  place."^  The 
names  of  the  beneficiaries  should  be  set  forth.'**     It  is  not 


Ohio  Ry.  Co.  v.  Dwyer,  157  Ky.  590; 
163  S.  W.  752;  Webster  v.  Norwegian 
Min.  Co.  137  Cal.  399;  70  Pac.  Rep. 
276;  Oulighan  v.  Butler,  189  Mass. 
287;  75  N.  E.  Rep.  726;  Chicago,  etc., 
R.  Co.  V.  La  Porte,  33  Ind.  App.  691; 
71  N.  E.  Rep.  166;  St.  Louis,  etc.,  R. 
Co.  V.  Black,  79  Ark.  179;  95  S.  W. 
Rep.  155;  Southern  R.  Co.  v.  Max- 
well, 113  Tenn.  464;  82  S.  W.  Rep. 
1137;  Chicago,  etc.,  R.  Co.  v.  Kin- 
mare,  115  111.  App.  132;  Kamboris 
V.  Oregon-W.  R.  &  N.  Co.  (Ore.) 
146  Pac.  1097. 

*^  The  complaint  may  be  amended 
to  show  who  are  the  persons  pe- 
cuniarily affected  by  the  deceased's 
death.  Kenney  v.  Seaboard  Air 
Line  R.  Co.  (N.  C);  80  S.  E.  1078; 
Chicago  Great  W.  R.  Co.  v.  Corinth, 
200  Fed.  375;  Peers  v.  Nevada,  etc., 
Co.  119  Fed.  Rep.  400;  Barnes  v. 
Ward,  9  C.  B.  392. 

''O  Moffett  V.  Baltimore  &  Ohio  R. 
Co.  220  Fed.  39. 

'"'  Union  Pac.  R.  Co.  v.  Roeser, 
69  Neb.  62;  95  N.  W.  Rep.  68; 
Peers  v.  Nevada,  etc.,  Co.  19  Fed. 
Rep.  400;  Peden  v.  American  Bridge 
Co.  120  Fed.  Rep.  523;  Kenney  v. 
New  York,  etc.,  Co.  49  Hun.  535; 
2  N.  Y.  Supp.  512;  Wescott  v. 
Central  Vt.   R.  Co.  61   Vt.   438;   17 


Atl.  Rep.  745;  Barnum  v.  Chicago, 
etc.,  R.  Co.  30  Minn.  461;  16  N.  W. 
Rep.  364;  Kelley  v.  Chicago,  etc., 
R.  Co.  50  Wis.  381;  7  N.  W.  Rep.  291; 
Korrady  v.  Lake  Shore,  etc.,  R.  Co. 
131  Ind.  261;  29  N.  E.  Rep.  1069; 
Chicago,  etc.,  R.  Co.  v.  Thomas, 
155  Ind.  634;  58  N.  E.  Rep.  1040. 

*8  Carrigan  v.  Stillwell,  97  Me.  247; 
54  Atl.  Rep.  389;  61  L.  R.  A.  163. 

««  Martin  v.  Butte,  34  Mont.  281; 
86  Pac.  Rep.  264. 

6°Trott  v.  Birmingham  R.  Co. 
144  Ala.  383;  39  So.  Rep.  716; 
Rosney  v.  Erie  R.  Co.  124  Fed.  Rep. 
90;  Birmingham,  etc.,  Ry.  Co.  v. 
Gunn,  141  Ala.  372;  37  So.  Rep.  329; 
Dorsey  v.  Columbus  R.  Co.  121  Ga. 
697;  49  S.  E.  Rep.  698;  United,  etc., 
Co.  V.  State,  100  Md.  634;  60  Atl. 
Rep.  248. 

^'  Louisville,  etc.,  R.  Co.  v.  Sum- 
mers, 125  Fed.  Rep.  719. 

*^  Denver,  etc.,  R.  Co.  v.  Gun- 
ning, 33  Colo.  280;  80  Pac.  Rep.  727. 

*^  International,  etc.,  R.  Co.  v. 
Glover,  13  Tex.  Civ.  App.  263;  88 
S.  W.  Rep.  515. 

^  Illinois  Central  R.  Co.  v.  Porter, 
207  Fed.  311;  125  C.  C.  A.  55. 


PLEADING   AND   PRACTICE.  303 

fatal  to  describe  some  as  beneficiaries  who  are  not  if  others 
be  named  who  are.""  "Where  a  complaint  alleged  the  de- 
ceased left  as  his  "only  heirs  at  law"  a  father  and  mother, 
it  was  held  not  necessary  to  allege  he  left  neither  wife  nor 
children.""  The  appointment  of  the  plaintiff  as  administrator 
need  not  be  expressly  alleged,  where  he  brings  the  suit  in 
his  representative  capacity."*^  It  is  not  necessary  to  allege 
that  the  administrator,  or  the  beneficiaries,  were  free  from 
fanlt,"^  and  under  the  present  statute  this  allegation  is  not 
necessary.  The  appointment  of  the  plaintiff  as  adminis- 
trator is  not  put  in  issue  by  a  general  denial,  and  so  need 
not  be  proven. '^^  An  amendment  is  allowable  which  adds 
different  allegations  in  respect  to  the  defendant's  negli- 
gence,'^^ or  more  particulars,'^^  or  adds  an  allegation  that 
the  deceased  left  a  wife  and  children.''*  In  the  case  of  a 
widow  or  minor  children,  a  reasonable  expectancy  of  support 
need  not  be  alleged.''^  If  the  action  is  for  the  benefit  of  the 
next  of  kin,  the  complaint  must  show  an  actual  deprivation 
of  pecuniary  benefits  that  had  flowed  from  the  deceased,  a 
mere  loss  of  an  occasional  gift  being  insufficient.''" 

8«  Clore  V.  Mclntire,  120  Ind.  262;  "  Daley   v.   Boston,   etc.,    R.    Co. 

22  N.  E.  Rep.  128;  Korrady  v.  Lake  147  Mass.  101;  16  N.  E.  Rep.  690. 

Shore,  etc.,  R.  Co.  131  Ind.  261;  29  "Harris    v.    Central    R.    Co.    78 

N.  E.  1069.  Ga.  525;  3  S.  E.  Rep.  355. 

"  Chicago,  etc.,  R.  Co.  v.  La  Porte,  '''  South  Carolina  R.   Co.  v.   Nix, 

33  Ind.  App.  691;  71  N.  E.  Rep.  166.  68  Ga.  572.     See  Haynie  v.  Chicago, 

^*  Chicago,  etc.,  R.  Co.  v.  Cummins,  etc.,  R.  Co.  9  111.  App.  105. 

24   Ind.   App.    192;   53   N.   E.   Rep.  "  Dooley  v.  Seaboard  Air  Line  R. 

1026;    Louisville,    etc.,    R.    Co.    v.  Co.   163   N.   C.   454;  79  S.   E.   970; 

Trammell,  93  Ala.  350;  9  So.  Rep.  Moffett  v.  Baltimore  &  Ohio  R.  Co. 

870;  Bowler  v.  Lane,  9  Met.  (Ky.)  311.  220  Fed.  39;  McCoullough  v.  Chicago, 

The   appointment   of    an   adminis-  R.   I.  &   P.   Ry.  Co.   160  Iowa  452; 

trator  cannot  be  collaterally  attacked.  142  N.  W.  67. 

Gulf,  C.  &  S.  F.  Ry.  Co.  (Tex.  Civ.  '6  minois   Central   R.   Co.   v.   Do- 

App.)  153  S.  W.  651.  herty,  153  Ky.  363;  155  S.  W.  1119; 

*^  Chicago,  etc.,  R.  Co.  v.  La  Porte,  Garrett   v.   Louisville  &   N.   R.   Co. 

33  Ind.  App.  691;  71  N.  E.  Rep.  166.  235  U.  S.  308;  35  Sup.  Ct.  32.     See 

"  Ewen   V.  Chicago,   etc.,    R.   Co.  McCoullough  v.  Chicago,  R.  I.  &  P. 

38  Wis.  613;  Union  Ry.,  etc.,  Co.  v.  Ry.  Co.   160  Iowa  452;   142  N.  W. 

Shacklet,  119  111.  232;  10  N.  E.  Rep.  67;  Rains  v.  Southern  Ry.  Co.   (N. 

896.  C.)  85  S.  E.  294. 

If  his  letters  of  administration  It  has  been  held  that  an  omission 
have  been  revoked,  that  fact  must  to  state  that  the  plaintiff  was  en- 
be  put  in  issue  by  a  special  plea.  gaged  in  interstate  commerce  when 
Burlington,  etc.,  R.  Co.  v.  Crockett,  injured  may  be  supplied  by  an 
17  Neb.  570;  24  N.  W.  Rep.  219.  answer  so  alleging.     Vickery  v.  New 

London  Northern  R.  Co.  87  Conn. 
634;  89  Atl.  277;  White  v.  Central 
Vt.  Ry.  Co.  87  Vt.  330;  89  Atl.  618, 
affirmed  35  Sup.  Ct.  865. 


304  FEDERAL,   EMPLOYERS'   LIABILITY   ACT. 

§  203.  Joinder  of  causes  of  action. — The  plaintiff  may 
combine  in  his  complaint,  declaration  or  petition  a  para- 
graph on  the  Federal  statute,  on  a  state  statute,  and  on  the 
common  law.  And  it  is  proper  that  he  should  do  so ;  for  he 
may  not  be  able  to  prove  a  cause  of  action  under  the  Federal 
statute,  and  if  he  had  only  a  cause  of  action  stated  under 
the  statute  he  might  be  defeated  in  not  being  able  to  prove 
it ;  and  then  when  he  sues  under  a  state  statute  or  at  com- 
mon law,  the  defendant  might  defeat  him  by  showing  the 
liability  was  under  the  Federal  statute,  if  the  question  of 
res  judicate  did  not  stoj)  it.  The  joinder  of  counts  or  para- 
graphs in  this  way  is  quite  common.'^^  Not  only  may  a 
joinder  thus  be  made,  but  it  is  permissible  to  combine  in 
a  single  paragraph  facts  showing  a  liability  under  the  com- 
mon law,  under  a  state  statute  in  force  where  the  injury 
occurred,  and  under  the  Federal  statute.'^  Where  a  statute 
or  the  code  of  the  state  permits  alternative  pleading,  the 
plaintiff  may  plead  in  the  alternative  either  that  he  (or  the 
deceased)  was  injured  while  employed  in  intrastate  com- 
merce or  interstate  commerce,  but  he  does  not  know  which 
of  the  two ;  and  of  course  he  may  allege  that  he  was  injured 
by  an  intrastate  or  interstate  train,  but  which  of  the  two 
he  does  not  know.'^  Where  but  one  cause  of  action  was 
stated  in  a  complaint  of  one  paragraph  which  was  sufficient 

"Bouchard    v.    Central    Vermont  S.  W.  951,  but  modified  153  Ky.  378; 

Ry.   Co.   87   Vt.   399;   89   Atl.   475;  155  S.  W.  723;    Bankson    v.  Illinois 

Taylor   v.    Southern    Ry.    Co.    (Ind.  Cent.  R.  Co.  196  Fed.  171;  Grow  v. 

App.)    101    N.    E.    506;    Thomas   v.  Oregon    Short   Line  R.  Co.  44  Utah 

Chicago  &  N.  W.  Ry.  Co.  202  Fed.  160;  138  Pac.  398. 

766;  Ulrich  v.  New  York,  N.  H.  &  '^  payne  v.   New  York,   S.   &  W. 

H.    R.   Co.    193   Fed.   768;   Atlantic  R.  Co.  201  N.  Y.  436;  95  N.  E.  79, 

Coast  Line  R.  Co.  v.  Jones,  9  Ala.  modifying   141   App.    Div.   833;    125 

App.  499;  63  So.  693;  Delaware.  L.  N.   Y.  Supp.   1011.     See  127  N.  Y. 

&  \V.  R.  Co.  V.  Yunkonis,  220  Fed.  Supp.  1135;  Strother  v.  Union  Pacific 

429,  affirming  213  Fed.  537;  Wabash  R.  Co.  220  Fed.  731;  Jones  v.  Chesa- 

R.  Co.  V.  Hayes,  224  U.  S.  86;  34  peake  &  Ohio  Ry.  Co.  149  Ky.  566; 

Sup.  Ct.  729;  58  L.  Ed.  1226  (dictum);  149  S.  W.  951;  Ulrich  v.  New  York, 

Ex  parte  Atlantic  Coast  Line  R.  Co.  N.   H.  &  IL   R.   Co.   193  Fed.  768; 

(Ala.j  67  So.  256;  Atkin.s  v.  Bullard  Illinois    Central    R.    Co.    v.    Nelson, 

(Ca.  App.)   80  S.   E.  220;  Southern  212  Fed.  69. 

Ry.  Co.  V.  Anslny,  8  Ga.  App.  325;  '•' Louisville  &  N.  R.  Co.  v.  Strange, 

68  S.  E.   10S6;  Jones  v.  Chesapeake  156  Ky.  439;  161  S.  W.  239. 
&  Ohio   Ky.   Co.   149  Ky.  566;   149 


PLEADING   AND   PRACTICE. 


305 


both  under  the  Federal  Act  and  at  common  law,  it  was  held 
that  the  mere  fact  that  it  was  tried  on  the  theory  that  it  was 
a  common  law  action  did  not  prevent  the  judgment  for 
plaintiff  being  sustained  on  appeal,  the  plaintiff  having 
proven  all  that  he  would  under  the  statute  and  more ;  it 
being  a  case  of  mere  irregularity  and  not  one  governed  by 
the  one  definite  theory  line  of  cases.^° 

§  204.  Requiring  plaintiff  to  elect. — Whether  or  not  the 
plaintiff  should  be  put  to  his  election  whether  he  will  pro- 
ceed under  the  Federal  Act,  under  the  state  statute,  or  at 
common  law,  where  he  has  combined  the  three  causes  of 
action  in  one  complaint,  declaration  or  petition  depends  on 
the  local  practice ;  and  the  same  rule  applies  where  two  or 
three  causes  of  action  is  combined  in  one  paragraph.  In 
Kentucky  it  is  held  that  he  should  be  at  the  opening  of  the 
evidence  f^  and  in  Iowa  it  is  held  that  he  may  be.^^  By  such 
a  course,  however,  the  plaintiff  loses  all  the  benefit  of  his 
right  to  join  the  three  causes  of  action,  at  least  if  he  is 
required  to  elect  before  the  close  of  the  evidence.  The  bet- 
ter practice  is  to  submit  the  entire  case  to  the  jury;  in  which 
event  the  court  must  instruct  the  jury  on  the  action  pre- 
sented by  the  several  paragraphs.®^  Where  at  the  close  of 
his  evidence,  the  complaint  setting  forth  a  single  cause  of 
action  under  the  state  law,  the  plaintiff  amended  his  com- 
plaint so  as  to  make  it  state  a  single  count  containing  a 
cause  of  action  under  the  Federal  Act,  it  was  held  that  he 
thereby  elected  to  abandon  his  cause  of  action  under  the 
state  law  and  rely  on  his  cause  of  action  under  the  Federal 
Act,  which  he  was  estopped  from  revoking  or  repudiating 


'"  Southern  Ry.   Co.   v.   Howerton  Held    also    not    reversible    error    to 

(Ind.)     105    N.    E.    1025,    reversing  overrule    the    motion.      Louisville    & 

Appellate  Court  decision  101  N.  E.  N.   R.  Co.  v.   RIoore,   156  Ky.  708; 

121;  103  N.  E.  121.  161  S.  W.   1129;  Thompson  v.  Cin- 

Actions    by    an    administrator    to  cinnati,  N.  O.  &  T.  P.  Ry.  Co.  165 

recover  for  the  pain  and  suffering;  of  Ky.  256;  176  S.  W.  1006. 

the  deceased,  and  also  for  pecuniary  82  ^rmbruster  v.  Chicago,  R.  I.  & 

loss  to  the  beneficiaries  may  be  joined,  p.  Ry.  Co.  (Iowa)  147  N.  W.  337. 

probably     in     a     single     paragraph.  83  gankson    v.    Illinois   Central   R. 

Louisville  &   N.   R.   Co.  v.  Fleming  Co.  196  Fed.  171;  Ex  parte  Atlantic 

(Ala.)  69  So.  125.  Coast  Line  R.  Co.  (Ala.)  67  So.  256. 

"  South  Covington   &   C.   St.   Ry.  it  has  been  h-ld  that  no  error  was 

Co.  v.  Finnan,  153  Ky.  340;  155  S.  committed  in  refusing  to  require  the 

W.  742;  Louisville  &   N.   R.   Co.   v.  plaintiff   to   elect   in    a    very   similar 

Strange,  156  Ky.  439;  161  S.  W.  239.  instance.    St.  Louis,  T.  M.  &  So.  Ry. 

Co.  v.  Rogers  (Ark.)  176  S.  W.  696. 


306  FEDERAL,   EMPLOYERS'    LIABILITY   ACT. 

after  a  verdict  was  directed  against  him  on  his  pleading  and 
evidence.^* 

§  205.  Amendment  of  complaint  to  fit  the  evidence — 
Statute  of  Limitations. — Usually  the  court  may  permit  an 
amendment  of  the  complaint  or  petition  to  fit  the  evidence 
at  its  close,  but  this  depends  upon  the  local  state  practice. 
Where  it  was  sought  by  the  pleadings  to  bring  the  action 
on  the  Federal  statute,  but  the  evidence  showed  a  liability 
under  the  local  common  law,  and  the  allegations  were  broad 
enough  to  cover  the  latter,  the  court  treated  the  allegations 
concerning  the  Federal  statute  as  eliminated,  and  this  was 
held  proper  by  the  Federal  Supreme  Court.  "The  plaintiff 
asserted  only  one  right  to  recover  for  the  injury,  and  in  the 
nature  of  things  he  could  have  but  one.  Whether  it  arose 
under  the  Federal  Act  or  under  the  state  law,  it  was  equally 
cognizable  in  the  state  court ;  and  had  it  been  presented  in 
an  alternative  way  in  separate  courts,  one  containing  and 
the  other  omitting  the  allegations  that  the  injury  occurred 
in  interstate  commerce,  the  propriety  of  proceeding  to  a 
judgment  under  the  latter  court,  after  it  appeared  that  the 
first  could  not  be  sustained,  doubtless  would  have  been 
freely  conceded.  Certainly  nothing  in  the  Federal  Act 
would  have  been  in  the  way.  Instead  of  presenting  his  case 
in  an  alternative  way,  the  plaintiff  so  stated  it  as  to  indicate 
that  he  was  claiming  only  under  the  Federal  Act.  And 
where  the  proofs  demonstrated  that  the  injurj^  arose  out- 
side of  the  interstate  commerce,  and  therefore  that  no  re- 
covery could  be  had  under  the  Federal  Act,  the  court  was 
confronted  with  tlic  question  whether  the  declaration  could 

8*  Bravis  v.  Chicago,  M.  &  St.  P,  proceed  under  Federal  statute,   the 

Ry.  Co.  217  Fed.  234;  citing  St.  Louis,  case  as  to  all  defendants  except  the 

I.  M.  &  S.  Ry.  Co.  V.  Ilestcrly,  228  interstate  railroad  must  be  dismissed. 

U.  S.  7C2;  33  Sup.  Ct.  703;  57  L.  Ed.  Thompson   v.    Cincinnati,    N.   O.   & 

1031;  Union  Pac.  Ry.  Co.  v.  Wyler,  T.  P.  Ry.  Co.  1G5  Ky.  256;  176  S.  W. 

158  U.  S.  285;  15  Sup.  Ct.  877;  39  lOOG. 

L.    Ed.    083;    Northern    Pacific    Ry.  If  there  be  a  misjoinder  of  defend- 

Co.  V.  Shight,  205  (J.  S.  122;  27  Sup.  ants   they   must   move   the   court  to 

Ct.    412;    51    L.    Ed.    .378;    Matz    v.  recjuire     the     plaintiff     to     elect     as 

Chicago  <fe  S.   R.  Co.  88   Fed.  770;  against  which  defendant  he  will  pro- 

Whalen    v.    Gordon,    95    Fed.    314;  ceed     when     the     evidence     closes. 

37  C.  C.  A.  70.    l!:iection  between  two  Copper  River  &  N.  W.  Ry.  Co.  v. 

Buit.s— one  under  .state  law  and  the  Heney,  211  Fed.  4.59;  127  C.  C.  A. 

other  under  F(-deral  Act.    Corbett  v.  048;  Louisville  &  N.  R.  Co.  v.  Flem- 

Roston  &  M.  H.  Co.  fMass.)  107  N.  ing  (Ala.)  09  So.  125. 
E.  00.     When  the  plaintiff  elects  to 


PLEADING  AND   PRACTICE.  307 

be  amended,  or  regarded  as  amended,  to  conform  to  the 
proofs.  Holding  that  this  could  be  done,  the  court  treated 
the  mistaken  allegation  that  the  injury  occurred  in  inter- 
state commerce  as  eliminated.  Therein  the  court  merely 
gave  effect  to  a  rule  of  local  practice,  the  application  of 
which  was  not  in  anywise  in  contravention  of  the  Federal 
Act.  It  follows  that  the  contention  that  the  defendant  was 
denied  a  right  or  immunity  to  which  it  was  entitled  under 
the  Federal  Act  is  not  only  untenable,  but  so  devoid  of  color 
as  to  furnish  no  basis  for  this  writ  of  error.  "^^  The  com- 
plaint may  be  amended  to  show  the  existence  of  persons 
pecuniarily  affected  by  the  employee's  death  and  other  re- 
lated matters.^''  Where  the  complaint  was  silent  as  to 
whether  the  action  was  intended  to  be  an  intrastate  case  or 
one  involving  interstate  commerce,  an  amendment  making 
it  an  interstate  commerce  case  was  held  not  to  allege  a  new 
cause  of  action.^^  An  amendment  of  a  defectively  stated 
cause  of  action,  bad  on  general  demurrer,  by  amplifying  it 
so  as  to  state  a  cause  of  action  under  the  Federal  Act,  does 
not  permit  the  bar  of  the  statute  of  limitations  to  intervene, 
if  the  cause  was  not  barred  when  the  first  complaint  or 
petition  was  filed.*^  On  reversal,  with  directions  to  grant  a 
new  trial,  amendments  should  be  allowed,  so  as  to  bring  the 
action  within  the  Federal  Act,  if  the  appellate  court  has  de- 
cided that  such  action  should  have  been  brought  under  that 
act.^^  In  Michigan,  under  the  statute  of  that  state  concerning 
amendment  of  pleadings,  it  was  held  that  a  declaration  not 
counting  upon  the  Federal  Act  or  on  the  state  statute,  but 
alleging  facts  imposing  a  liability  under  the  Federal  statute, 
if  it  had  charged  that  at  the  time  of  the  accident  the  de- 
fendant was  engaged  in  interstate  commerce,  could  be 
amended  to  conform  to  the  proof  that  such  defendant  was 

8=  Wabash  R.  Co.  v.  Hayes,  234  U.  R.  Co.  87  Conn.   634;  89  Atl.  277; 

S.  86;  34  Sup.  Ct.  729;  58  L.  Ed.  1226,  Smith  v.  Atlantic  Coast  Line  R.  Co. 

affirming  180  111.  App.  511;   IHinois  210  Fed.  761;  127  C.  C.  A.  311. 
Central  R.  Co.  V.  Nelson,  212  Fed.  69;  ^s  Eastern   Ry.   Co.  v.  Ellis   (Tex. 

Central  Vt.  R.  Co.  v.  White,  35  Sup.  Civ.  App.)  153  S.  W.  701;  Cincinnati, 

Ct.  865.  affirming  87  Vt.  330:  89  Atl.  N.  O.  &  T.  P.  Ry.  Co.  v.  Goode,  163 

618;  Knapp  v.  Great  Northern  Ry.  Ky.  60;  173  S.  W.  329;  Te.xarkana  & 

Co.  (Minn.)  l.")3  N.  W.  848.  S.  F.   Ry.  Co.  v.  Casey  (Tex.  Civ. 

**  Keuney    v.    Seaboard    Air    Line  App.)  172  S.  W.  729. 
Ry.  Co.  166  N.  C.  566;  80  S.  E.  1078.  9'  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co. 

8'  Vickery  v.  New  London  Northern  v.  Goode,  155  Ky.  153;  159  S.  W.  695. 


308  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

engaged  in  interstate  commerce,  so  as  to  authorize  a  recov- 
ery under  the  Federal  Act.^°  By  amending  his  complaint  so 
as  to  show  a  claim  under  a  state  statute,  the  plaintiff  can- 
not thereafter  claim  that  he  is  entitled  to  recover  under  the 
Federal  statute.''^  An  amendment  after  the  two  years 
limitation  by  adding  formal  allegations  to  bring  the  case 
under  the  Federal  Act  is  permissible,  the  allegations  con- 
cerning the  injury  remaining  the  same.  In  such  an  instance 
no  new  cause  of  action  has  been  brought  by  adding  the 
amendment  or  changing  the  complaint."-  An  amendment 
of  a  cause  of  action  defectively  stated,  bad  on  general  de- 
murrer, by  amplifying  it  so  as  to  state  a  cause  of  action, 
does  not  permit  the  bar  of  limitations  to  be  used  as  a  de- 
fense, if  the  cause  was  not  barred  when  the  original  petition 
was  filed."^  The  complaint  may  be  amended  so  as  to  show 
the  beneficiary,®*  After  the  jury  is  sworn  the  plaintiff  may 
change  the  allegation  concerning  which  court  appointed  him 
administrator.®^  Where  the  original  petition  alleged  a  com- 
mon law  cause  of  action,  and  conceding  that  the  amended 
petition  alleged  a  cause  of  action  under  the  state  and  Fed- 
eral statutes  constituted  a  departure,  it  was  held  that  the 
objection  was  waived  by  answering  to  the  merits  and  going 
to  trial  on  the  amended  petition.®'^  But  where  the  petition  did 
not  contain  the  necessary  allegations  concerning  interstate 
commerce,  but  the  facts  making  the  Federal  statute  appli- 
cable appeared  on  the  trial,  it  was  held  that  not  only  could 
there  be  no  recovery,  but  also  that  the  petition  could  not 


*"  Femette  v.   Pere  Marquette  R.  ^^  Smith    v.    Atlantic    Coast    Line 

Co.  (Mich.)  144  N.  W.  834.  R.  Co.  210  Fed.  761;  127  C.  C.  A.  311; 

Under    statutory     authority,     the  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  v. 

Supreme     Court     treated     the    dec-  Goode  (Ky.)  173  S.  W.  329. 

hiration  amended,  in  order  to  affirm  "'  Eastern   Ry.   Co.   v.   Ellis   (Tex. 

the  case.  Civ.  App.)  153  S.  W.  701. 

"'  Bravis  v.  Chicago,  I.  M.  &  St.  "''  Kenney    v.    Seaboard    Air    Line 

P.  Ry.  217  Fed.  234.  R.  Co.  1()5  N.  C.  99;  80  S.  E.  1078. 

The   same   is   true   where   the   de-  "^  Chicago    Great    W.    R.    Co.    v. 

feiidant  succeeds  in  getting  the  com-  McCormick,  200  Fed.  375. 

plaint  amended  on   motion.     Illinois  '■"^  McAdoo  v.  Kansas  City  W.  Ry. 

Central  R.  Co.  v.  Nelson,  212  Fed.  Co.  (Mo.  App.)  164  S.  W.  188. 
69. 


PLEADING   AND   PRACTICE.  309 

be  amended  to  conform  to  the  proof,  inasmuch  as  there  had 
been  a  complete  variance."^ 

§  206.  Substituting-  the  personal  representative  of  de- 
ceased for  beneficiary — Statute  of  Limitations. — In  a  num- 
ber of  cases  the  action  has  been  brought  by  a  beneficiary — 
usually  the  widow — and  on  the  mistake  being  discovered, 
successful  endeavors  have  been  made  to  substitute  the  per- 
sonal representative  of  the  deceased  in  place  of  the  plaintiff. 
The  most  notable  case  is  one  that,  arose  in  a  Federal  court. 
There  the  widow,  in  her  individual  capacity,  brought  the 
suit  for  the  benefit  of  herself.  At  that  time  there  was  no 
administrator  upon  the  estate,  and  no  necessity  for  any. 
After  that  she  was  appointed  administratrix,  and  after  the 
issues  were  closed,  and  more  than  two  years  after  the  death 
of  her  husband,  she  asked  by  proper  pleading,  to  be  ad- 
mitted to  prosecute  the  cause  of  action  as  administratrix, 
and  was  substituted  in  her  representative  capacity  for 
herself  in  her  individual  capacity,  and  this  was  held  not 
error,  and  that  the  substitution  was  not  equivalent  to  the 
commencement  of  a  new  action,  so  as  to  render  it  subject  to 
the  two  years  limitation  prescribed  by  section  six.  "The 
change  was  in  form  rather  than  in  substance.  It  introduced 
no  new  form  or  different  cause  of  action,  nor  did  it  set  up 
any  different  state  of  facts  as  the  ground  of  action,  and 
therefore  it  related  back  to  the  beginning  of  the  suit."^^  In 
other  instances  a  like  ruling  has  been  made.^^  But  such 
a  substitution  cannot  be  made  on  appeal."" 

"  Moliter  v.  Wabash  R.  Co.  (Mo.)  1906.    Bixler  v.  Pennsylvania  R.  Co. 

164  S.  W.  188.    This  case  simply  pre-  201    Fed.   553.      See   also   Doran   v. 

sents  an  instance  of  local  practice.  Pennsylvania   R.    Co.   93   Fed.   266; 

See   though   Cincinnati,    N.    O.   &  35  C.  C.  A.  282;  Texarkana  &   Ft. 

T.  P.  Ry.  Co.  V.  Goode,  155  Ky.  153;  S.  Rv.  Co.  v.  Casey  (Tex.  Civ.  App.) 

159  S.  W.  695.  172  S.  W.  729. 

^*  Missouri,   K.   &  T.   Ry.   Co.   v.  Since  the  administrator  may  main- 

Wulf,  226  U.  S.  570;  33  Sup.  Ct.  135;  tain  an  action   because  of  the  pain 

57  L.  Ed.  274,  affirming  192  Fed.  919;  and   anguish   the   deceased   suffered, 

113  C.  C.  A.  665,  and  distinguishing  there   is   no    reason    why   he    cannot 

Union  Pacific  R.  Co.  v.  Wyler,  158  be  substituted  in  an  action  brought 

U.  S.  285;  15  Sup.  Ct.  877;  39  L.  Ed.  by  the  injured  servant  where  his  death 

983.  occurs  before  judgment  rendered. 

s^Hall  V.   Louisville,  etc.,   R.   Co.  '"o  Missouri,  K.  &  T.   Rv.  Co.  v. 

157  Fed.  464,  under  Act  of  June  11,  Lenahan,  39  Okla.  283;  13o>ac.  383. 


310  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

§  207.    By  what  law  sufRciency  of  complaint  tested. — ^If 

the  allegations  of  the  complaint  do  not  show  that  the  action 
is  brought  under  a  statute,  its  sufficiency  will  be  judged  by 
the  common  law/°^ 

§  208.  Defense  is  governed  by  Federal  statute. — The 
local  state  practice  governs  so  far  as  pleading  a  defense. 
Thus  under  the  New  York  practice  the  defense  that  the 
liability  is  only  under  the  Federal  Act  and  not  under  the 
state  law  has  to  be  presented  by  answer  ;^°^  and  there  is  a 
like  case  in  lowa^""^  and  Georgia. ^°*  But  so  far  as  the  ques- 
tion that  the  action  must  be  brought  under  that  statute  and 
not  under  a  state  law,  these  cases  in  New  York,  Iowa  and 
Georgia  are  erroneous.  It  is  not  a  mere  question  of  prac- 
tice, but  a  jurisdictional  one ;  and  as  soon  as  the  evidence 
discloses  the  fact  that  the  case  is  one  governed  by  the  Fed- 
eral Act  and  not  by  the  state  law  the  question  can  be  raised 
without  an  answer  having  been  filed  to  that  effect. ^°^  This 
may  be  done  by  moving  for  a  nonsuit  or  requesting  instruc- 
tions to  be  given  to  the  jury  without  raising  the  question 
by  answer.^"*^     When  the  suit  is  upon  a  state  statute  or  at 

"'  Guana  v.  Southern  Pacific  Co.  58  L.  Ed.  591,  reversing  156  N.  C.  496; 

15  Ariz.  413;  139  Pac.  782;  St.  Louis,  72  S.  E.  858;  Grand  Trunk  W.  Ry. 

S.  F.  &  T.  Ry.  Co.  v.  Seale  (Tex.  Co.   v.   Lindsay,  232  U.  S.  248;  34 

Civ.  App.)  148  S.  W.  1099.  Sup.  Ct.  581;  58  L.  Ed.  828;  Seaboard 

"2  Bitondo  v.   New  York  Central  Air  Line  R.  Co.  v.  Duvall,  225  U.  S. 

&  H.  R.  R.  Co.  163  App.  Div.  823;  477;  32  Sup.  Ct.  790;  56  L.  Ed.  1171; 

149  N.  Y.  Supp.  339.  Toledo,    St.    L.    &    W.    R.    Co.    v. 

"3  Bradbury   v.   Chicago,   etc.,   R.  Slavin,  236  U.  S.  457;  35  Sup.  Ct. 

Co.  149  Iowa  51;  128  N.  W.  1.  306;  58  L.  Ed.  — ,  reversing  88  Ohio 

'"  Southern   R.   Co.   v.   Ansley,   8  St.  536;  106  N.  E.  1077;  Flanders  v. 

Ga.  App.  325;  68  S.  E.  1086.  Georgia,  S.  &  F.  Ry.  Co.   (Fla.)  67 

Apparently    also    in    Texas.      St.  So.  68;  Delaware,  L.  &  W.  R.  Co. 

Louis  &  S.  F.  R.  Co.  v.  Cox  (Tex.  v.  Yurkonis,  220  Fed.  429,  affirming 

Civ.  App.)  159  S.  W.  1042,  and  Ken-  213  Fed.  537;  Molitor  v.  Wabash  R. 

tucky,  Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.   (Mo.)   168  S.  \V.  250;  Kelly  v. 

Co.  1.55  Ky.  1.53;  1.59  S.  W.  695.  Chesapeake  &  Ohio  Ry.  Co.  201  Fed. 

'«'St.  Louis,  etc.,  R.  Co.  v.  Seale,  602;  Stafford   v.   Norfolk  &  W.  Ry. 

229  U.  S.  1.56;  33  Sup.  Ct.  651;  .57  Co.   202  Fed.   605;   Rice  v.   Boston 

L.Ed.  651,  reversing  (Tex.  Civ.  App.).  &  M.  R.  Co.  203  Fed.  580. 

148  S.  W.  1099;  Gulf,  etc.,  R.  Co.  v.  Where   the   defendant   set   up    the 

Lester  (Tex.   Civ.  App.)   149  S.  W.  jurisdictional    facts    for    the    appli- 

841   (precise  point  decided).  cation  of  the   Federal  Act,   and   the 

""'  North  Carolina  R.  Co.  v.  Zack-  plaintiff  admitted  the  truth  of  these 

ary,  232  L'.  S.  248;  34  Suj).  Ct.  .305;  allegations,    it    was    held    that    the 


PLEADING   AND   PRACTICE, 


311 


common  law  the  defendant  may  raise  the  question  that  the 
action  should  have  been  brought  upon  the  P^ederal  statute 
as  soon  as  the  evidence  discloses  that  fact,  by  objecting  to 
the  further  introduction  of  evidence.^°^  But  the  defendant 
must  in  some  way  set  up  the  claim  that  the  case  is  governed 
by  the  Federal  Act,  or  he  will  waive  his  right  to  so  insist 
on  appeal. ^°^ 

§  209.    Pleading   a   defense — Contributory   negligence. — 

If  the  practice  in  the  local  state  courts  requires  a  particular 
defense  to  be  presented  by  answer,  it  must  be  so  presented 
in  an  action  on  the  Federal  Act.^°^  That  is  true  where 
assumption  of  risk  must  be  especially  pleaded  according  to 
the  local  practice.^^°  But  if  the  local  practice  does  not 
require  a  plea  or  answer  to  raise  the  question,  then  in  an 
action  under  the  Federal  Act  it  may  be  raised  without 
pleading  it.^"  If  the  local  practice  requires  contributory 
negligence   to   be   pleaded   in   actions   of  negligence,   then 


plaintifiF  could  recover  under  that  act. 
Vickery  v.  New  London  N.  R.  Co.  87 
Conn.  634;  89  Atl.  277;  Central  Vt. 
R.  Co.  V.  White,  87  Vt.  330;  89  Atl. 
618,  affirmed  35  Sup.  Ct.  865. 

But  where  the  wife  sued  in  her 
individual  capacity,  and  the  defendant 
set  up  the  jurisdictional  facts,  making 
the  Federal  Act  applicable,  she  was 
denied  a  recovery.  Rich  v.  St. 
Louis  &  S.  F.  R.  Co.  166  Mo.  App. 
399;  148  S.  W.  1011. 

"^  Penny  v.  New  Orleans  Great 
Northern  R.  Co.  135  La.  962;  66  So. 
313;  Melzner  v.  Northern  Pacific  Ry. 
Co.  46  Mont.  162;  127  Pac.  1002. 

The  question  cannot  be  raised 
for  the  first  time  on  appeal.  Chicago, 
R.  I.  &  P.  Ry.  Co.  V.  HoUiday  (Okla.) 
145  Pac.  786. 

'"8  Chicago,  I.  L.  R.  Co.  v.  Hackett, 
228  U.  S.  559;  33  Sup.  Ct.  581;  57 
L.  Ed.  581,  affirming  170  111.  App.  140; 
Gaber  v.  Duluth,  S.  S.  &  A.  Ry.  Co. 
(Wis.)  150  N.  W.  489;  Missouri,  K. 
&  T.  Ry.  Co.  V.  Lenahan,  39  Okla. 
283;  135  Pac.  383;  Louisville  &  N. 
R.  Co.  v.  Barrett,  85  S.  E.  923. 

Where  the  defendant  admitted  that 
the  plaintiff  was  injured  while  en- 
gaged in  interstate  commerce,  it  was 


held  that  his  admission  did  not  give 
the  Federal  court  jurisdiction.  Dela- 
ware, L.  &  W.  R.  Co.  v.  Yurkonis, 
220  Fed.  429,  affirming  213  Fed.  537. 
lo^'Bitondo  v.  New  York  Central 
R.  Co.  163  App.  Div.  823;  149  N.  Y. 
Supp.  339;  New  York,  N.  H.  &  H. 
R.  R.  Co.  v.  Vizvori,  210  Fed.  118; 
126  C.  C.  A.  632;  Southern  Ry.  Co. 
V.  Roger,  219  Fed.  702;  Pelton  v. 
Illinois  C.  R.  Co.  (Iowa)  156  N.  W. 
236. 

11°  Sweet  v.  Chicago  &  N.  W.  Ry. 
Co.  157  Wis.  400;  147  N.  W.  1054; 
Illinois  Central  R.  Co.  v  Dougherty, 
153  Kv.  363;  155  S.  W.  1119;  Lloyd 
v.  Southern  Ry.  Co.  166  N.  C.  24; 
81  S.  E.  1003;  New  York,  N.  H.  &  H. 
R.  Co.  V.  Vizvori,  210  Fed.  118;  126 
C,  C.  A.  632;  Cincinnati,  N.  O.  &  T. 
&  T.  P.  Ry.  Co.  V.  Goldston,  156 
Ky.  410;  161  S.  W.  246;  Oberhn  v. 
Oregon-W.  R.  &  N.  Co.  (Ore.)  142 
Pac.  554. 

"1  Guana  v.  Southern  Pac.  Co.  15 
Ariz.  413;  139  Pac.  782;  Lloyd  v. 
Southern  Ry.  Co.  166  N.  C.  24;  81 
S.  E.  1003;  Freeman  v.  Powell  (Te.\. 
Civ.  App.)  144  S.  W.  1033;  Barker 
V.  Kansas  City,  M.  &  O.  Ry.  Co.  88 
Kan.  767;  129  Pac.  1151;  43  L.  R.  A. 
(N.  S.)  1121. 


3]^2  FEDERAL,    EMPLOYERS'    LIABILITY   ACT. 

it  must  be  pleaded  in  an  action  on  the  Federal  statute, 
not  as  a  full  defense,  but  a  defense  as  to  the  amount  of  dam- 
ages recoverable,  and  the  defendant,  whether  pleaded  or  not, 
has  the  burden  to  show  it."^  But  the  contrary  has  been 
expressly  held,  on  the  ground  that  contributory  negligence 
only  goes  to  the  amount  of  damages  recoverable. ^^^  The 
burden  is   on  the   defendant  to   show   contributory  negli- 


§  210.  Answer  of  Statute  of  Limitations. — ^It  has  been  ex- 
pressly decided  that  if  the  defendant  desires  to  avail  him- 
self of  the  fact  that  the  action  had  not  been  brought  within 
two  years  after  the  injury  was  inflicted  on  the  one  hand, 
or  within  two  years  after  the  employee's  death  due  to  his 
injury,  that  fact  must  be  set  up  by  answer,"^  thus  treating 
the  statute  on  this  point  as  an  ordinary  statute  of  limitation. 
But  as  we  have  elsewhere  stated,^^*'  the  burden  seems  to  be 
on  the  plaintiff  to  show  that  he  brought  his  action  within 
two  years  after  his  cause  of  action  accrued. ^^^ 

§  211.  Venue. — The  action  is  transitory,  not  local.^^^  And 
where  the  action  is  brought  in  the  Federal  court,  but  not 
specially  based  upon  either  the  Federal  or  a  state  statute, 

11=  Seaboard  Air  Line  Ry.  Co.  v,  (Mo.)  172  S.  W.  340;  Pennsylvania 

IMoore,  193  Fed.  1022;  113  C.  C.  A.  R.  Co.  v.  Goughnour,  208  Fed.  961; 

608,  affirmed  228  U.  S.  433;  33  Sup.  126  C.  C.  A.  39. 

Ct.   580;   57   L.   Ed.   907;   White   v.  Interrogatories  to  the  jury  on  the 

Central    Vt.    Ry.    Co.    87    Vt.    330;  question   of   contributory   negligence 

89  Atl.  618;  St.  Louis,  I.  1\I.  &  So.  Ry.  may  be  refused.     Lloyd  v.  Southern 

Co.  V.  Rodgers  (Ark.)  176  S.  W.  696;  Ry.  Co.  166  N.  C.  24;  81  S.  E.  1003. 

Jones  V.   Kansas  City   So.   Ry.   Co.  It  has  been  held  that  an  omission 

(La.)  68  So.  401;  Carpenter  v.  Kan-  in  the  complaint  to  show  that  the 

sas  City  S.  Ry.  Co.  (j\Io.)  175  S.  W.  plaintiff    was    engaged   in   interstate 

234.     A  plea  of  contributory   negli-  commerce  might  be  supplied  by  the 

gence  as  a  full  defense  is  demurrable.  answer.      Vickery    v.    New    London 

Southern   Ry.   Co.   v.   Peters    (Ala.)  Northern  R.  Co.  87  Conn.  634;  89 

69  So.  611.  Atl.  277;  White  v.  Central  Vermont 

"3  Lloyd    V.     Southern     Ry.    Co.  Ry.  Co.  87  Vt.  330;  89  Atl.  618. 

166  N.  C.  24;  81  S.  E.  1003.  '"•  Burnett  v.  Atlantic  Coast  Line 

It  is  error  to  charge  the  jury  that  R.  Co.  163  N.  C.  186;  79  S.  E.  414. 

contributory  negligence  is  a  defense.  ^'^  Section  118. 

Chicago   Great   W.    R.   Co.   v.    Mc-  '*'  The    provisions    extending    the 

Corrnick,  200  Fed.  .375.  time,   within   which   actions   may  be 

"<  White  V.  Central  Vermont  Ry.  brought,  to  two  years  is  not  retro- 
Co.  87  Vt.  .330;  89  All.  018,  affirmed  active.  Mouicas  v.  Baltimore  & 
35  Sup.  Ct.  805;  Seaboard  Air  Line  Ohio  R.  Co.  40  App.  D.  C.  391. 
Ry.  Co.  V.  Moore,  193  Fed.  1022;  "» Anderson  v.  Louisville  &  N.  R. 
]  13  C.  C.  A.  (;08,  affirmed  228  U.  S.  Co.  210  Fed.  689. 
4.33;  33  Sup.  Ct.  .'',80;  .57  L.  Ed.  907; 
Fish  V.  Chicago,  R.  I.  &  P.  Ry.  Co. 


PLEADING  AND   PRACTICE.  313 

if  no   objection  is  made  that  the   ease  is  brought  in  the 
wrong  venue  at  the  proper  time  it  is  waived/^^ 

§  212.  Variance. — If  the  action  be  expressly  based  on  the 
state  law,  but  the  evidence  shows  a  liability  under  the 
Federal  Act,  there  is  a  fatal  variance ;  and  if  the  action  is 
expressly  based  on  the  Federal  Act,  but  a  liability  be  shown 
at  common  law  or  under  a  state  statute,  there  is  likewise  a 
fatal  variance.*  But  if  no  statute  be  pleaded,  yet  the  facts 
alleged  show  a  cause  of  action  under  the  Federal  statute, 
and  the  proof  shows  such  to  be  the  case,  there  is  no  vari- 
ance.^'°  Where  the  action  was  based  on  the  Federal  statute 
and  the  plaintiff  failed  to  prove  he  was  engaged  in  inter- 
state commerce  at  the  time  of  the  accident  it  was  held  that 
he  was  entitled  to  have  his  case  submitted  under  the  com- 
mon law  theory,  his  petition  containing  allegations  suf- 
ficient to  state  a  common  law  cause  of  action  ;^-^  but  after- 
wards this  part  of  the  opinion  was  withdrawn  as  unneces- 
sary.^^^  Where  the  plaintiff  sued  at  common  law,  but  it 
appeared  in  evidence  that  the  Federal  statute  was  appli- 
cable, and  on  submission  of  the  case  on  the  common  law- 
count,  the  jury  brought  in  a  verdict  for  the  plaintiff,  the 
case  was  reversed,  the  Supreme  Court  holding  that  the 
plaintiff  must  rely  upon  the  Federal  statute  in  order  to  re- 
cover.^^^  But  it  should  be  observed  that  this  is  not  so  much 
a  case  of  variance  as  it  is  one  involving  the  rule  that  an 
interstate  employee  must  sue  on  the  Federal  statute,  and  has 
no  other  cause  of  action.  It  is  quite  different  when  the 
action  is  brought  under  the  Federal  statute  and  allegations 

»"  Erie    R.    Co.    v.    Kennedy,  191  See   also   Erie   R.   Co.   v.   Kennedy, 

Fed.  332;  112  C.  C.  A.  76.  191  Fed.  332;  112  C.  C.  A.  76,  and 

•  Kelly    V.     Chesapeake    &    Ohio  Ullrich  v.  New  York,  N.  H.  &  H.  R. 

Ry.   Co.   201   Fed.   602;   Stafford   v.  R.  Co.  193  Fed.  768. 
Norfolk  &  W.  Ry.  Co.  202  Fed.  605;  '-  Jones  v.  Chesapeake  &  Ohio  R. 

Rice  V.  Boston  &  M.  R.  Co.  203  Fed.  Co.  153  Ky.  378;  155  S.  W.  723. 
580;  Komboris  v.   Oregon  &  Wash.  i^s  Qains  v.  Detroit,  G.  H.  &   M. 

R.  &  Nav.  Co.  (Ore.)  146  Pac.  1097;  Ry.    Co.    (Mich.)    148    N.    W.    397. 

Lauer  v.  Northern  P.  R.  Co.  (Wash.)  See  Mcintosh  v.  St.  Louis  &  S.  F.  R. 

145    Pac.    606;    Koennecke    v.    Sea-  Co.   182  App.   288;   168  S.   W.  821. 

board  A.  L.  R.  Co.  (S.  C.)  85  S.  E.  374.  Total  variance,  Kamboris  v.  Oregon 

'=''Ho!?erty   v.   Philadelphia  &   R.  &    W.  R.    &    Nav.    Co.    (Ore.)    146 

R.  Co.  245  Pa.  443;  91  Atl.  854.  Pac.  1097. 

'-*  Jones  V.  Chesapeake  &  Ohio  Ry. 
Co.   149  Ky.   566;   149  S.   W.  951. 


314 


FEDERAL  EMPLOYERS'   LIABILITY   ACT. 


are  used  which  are  sufficient  to  bring  the  action  on  a  state 
statute  or  at  common  law,  and  the  proof  concerning  liability 
under  the  Federal  statute  fails.  In  such  an  instance  the 
plaintiff  may  go  to  the  jury  on  the  state  statute  or  common 
law  as  his  proof  may  show.  And  the  same  is  true  where 
the  action  is  at  common  law  or  on  a  state  statute,  but  the 
allegations  being  broad  enough  to  show  a  liability  under 
the  Federal  Act,  a  recovery  may  be  had  under  the  latter,  all 
reference  to  the  state  statute  being  regarded  as  surplus- 
age.^^* 

§  213.  Notice  of  injury  received. — A  state  statute  requir- 
ing notice  of  an  injury  to  be  given  the  defendant  before  an 
action  to  recover  damages  therefor,  has  no  application.^^'' 

§  214.  Dismissal — Nonsuit — Directing  verdict. — The  pro- 
vision in  the  Federal  statute  that  contributory  negligence 
shall  not  be  a  complete  bar  to  a  recovery  is  equivalent  to  a 
declaration  that  the  court  cannot  direct  a  nonsuit  on  the  ground 


'"  Southern  Ry.  Co.  v.  Ansley,  8 
Ga.  App.  325;  68  S.  E.  1086. 

Where  the  cause  of  action  arose 
before  the  Federal  Act,  went  into 
force,  but  the  action,  based  on 
that  act,  was  brought  after  it  went 
into  force,  by  the  administrator,  it 
was  held  that  no  recovery  could  be 
had  under  a  state  law  giving  a  right 
of  action,  not  to  the  personal  repre- 
sentatives but  to  the  deceased's 
parents,  because  the  damages  went 
to  the  estate  of  the  deceased  employee, 
for  which  a  personal  representative 
might  maintain  an  action  was  a 
distinct  cause  of  action  from  damages 
to  his  parent  resulting  from  his  death 
and  for  which  the  statute  gave  a 
cause  of  action  to  his  parents.  Win- 
free  V.  Northern  Pac.  R.  Co.  227 
U.  S.  206;  33  Sup.  Ct.  273;  57  L.  Ed. 
518,  affirming  173  Fed.  65. 

Where  the  Federal  Act  was  not 
alleged,  but  the  evidence  showed  a 
cau.sc  of  action  under  it,  the  court 
refused  to  reverse  the  case,  because 
a  state  statute  forbade  a  reversal 
unless    there    be    error    affecting    the 


merits  of  the  case.  Mcintosh  v. 
St.  Louis  &  S.  F.  R.  Co.  (Mo.  App.) 
168  S.  W.  821. 

A  petition  stating  facts  consti- 
tuting a  cause  of  action  under  the 
Federal  Act  is  supported  by  evidence 
bringing  the  case  within  that  act, 
though  it  be  merely  alleged  that  at 
the  time  of  the  injury  the  common  law 
liability  of  the  employer  for  injuries 
was  in  force — the  petition  not  being 
effected  by  a  reference  to  the  non- 
effective law.  Carpenter  v.  Kansas 
City  Southern  Ry.  Co.  (Mo.  App.) 
175  S.  W.  234. 

Though  the  complaint  be  in- 
sufficient under  the  Federal  Act, 
yet  if  the  evidence  shows  that  act 
controls,  it  will  be  applied  to  the  facts 
proven.  St.  Louis,  I.  M.  &  S.  Ry. 
Co.  (Ark.)  175  S.  W.  1177.  See 
Toledo,  etc.,  Ry.  Co.  v.  Slavin,  236 
U.  S.  457;  35  Sup.  Ct.  306;  59  L. 
Ed.—. 

Variance  from  negligent  acts  al- 
leged. Louisville  &  N.  R.  Co.  (Ala.) 
69  So.  106. 

■^f-El  Paso  &  N.  E.  Ry.  Co.  v. 
Gutierrez,  215  U.  S.  87;  30  Sup.  Ct. 
21;  54  L.  Ed.  106. 


PLEADING  AND   PRACTICE.  3^5 

plaintiff's  own  evidence  shows  him  to  be  guilty  of  contrib- 
utory negligence.^-*^  A  case  may  be  dismissed  without 
prejudice/" 

§  215.  Evidence — Burden. — The  plaintiff  has  the  burden 
to  show  that  at  the  time  he  or  the  deceased  was  injured  he 
was  a  servant  of  the  defendant  engaged  in  interstate  com- 
merce, that  the  defendant  was  a  carrier  by  railroad  engaged 
in  such  commerce,  and  that  his  injuries  were  due  to  the 
defendant's  negligence  as  set  forth  in  his  complaint  or  pe- 
tition.^-^  Evidence  of  the  general  duties  of  the  members 
of  the  train  crew  while  the  employee  was  employed  by  the 
railroad  company  is  admissible,^-^  yet  merely  showing  that  the 
railroad  carrier  was  engaged  in  interstate  commerce  does 
rot  show  that  the  employee  was  so  engaged  when  injured.^^° 
Evidence  that  the  train  had  on  it  interstate  shipments  may 
be  introduced  to  show  that  the  train  was  one  being  used  in 
interstate  commerce.  And  where  there  was  no  direct  proof 
that  the  cars  had  interstate  shipments  aboard,  but  the  usual 
course  of  business  was  shown,  it  was  held  that  there  was 
sufficient  proof  that  the  train  was  an  interstate  commerce 
train. ^^^  Proof  that  some  of  the  cars  in  the  train  contained 
interstate  shipments  may  be  shown  by  its  conductor  without 
putting  in  evidence  the  defendant's  records  of  such  ship- 
ments, the  plaintiff  not  being  compelled  to  produce  them.^^- 
In  a  Federal  case  it  was  said:     "The  cars  had  been  em- 

'26  Horton   v.    Seaboard   Air   Line  App.  Div.  — ;  150  N.  Y.  Supp.  99; 

Ry.  Co.  157  N.  C.  146;  72  S.  E.  958;  McAuliffe  v.  N.  Y.  C.  &  H.  R.  R.  Co. 

Pfeiffer  v.  Oregon  W.  R.   &   N.   Co.  150  N.  Y.  Supp.  512;  Erie  R.  Co.  v. 

(Ore.)  144  Pac.  762.  Jacobus,    221    Fed.    335;    Boyle    v. 

1"  Oliver  v.  Northern  Pac.  Ry.  Co.  Pennsylvania  R.  Co.   221   Fed.  453. 

196  Fed.  432.  It  must  be  alleged  and  shown  that 

1-*  Charleston  &  W.  C.  Ry.  Co.  v.  the  injury  occurred  within  the  ser- 

Anchors,  10  Ga.  App.  322;  73  S.  E.  vant's  line  of  duty.    Louisville  &  N. 

551;  Montgomery  v.  Southern  Pacific  R.  Co.  v.  Fleming  (Ala.)  69  So.  125. 

Co.    64    Ore.    597;    131    Pac.    507;  »=9  Montgomery  v.  Southern  Pacific 

Devine  v.  Chicago,  R.  L  &  P.  Ry.  Co.  Ry.  64  Ore.  597;  131  Pac.  507;  Evans 

266  111.  248;  107  N.  E.  595;  Southern  v.    Detroit,    G.    H.    &    M.    Ry.   Co. 

Pacific    Co.    v.    Vaughn    (Tex.    Civ.  (Mich.)  148  N.  W.  490. 

App.)  165  S.  W.  885;  Wheeling  Ter-  "o  Gordon  v.   New  Orleans  Great 

minal  Ry.  Co.  v.  Russell.  209  Fed.  Northern  R.  Co.  135  La.  137;  64  So. 

795;   126  C.  C.  A.  519;  Ft.  Worth  1014. 

Belt  Ry.  Co.  v.  Ferryman  (Tex.  Civ.  "^  Southern  Pacific  Co.  v.  Vaughn 

App.)    158   S.   W.    1181;   Gordon   v.  (Tex.    Civ.    App.)    165    S.    W.    885; 

New  Orleans  G.  N.  R.  Co.  135  La.  Devine  v.  Chicago.  R.  I.  &  P.  Ry. 

137;  64  So.  1014;  Baltimore  &  Ohio  Co.  185  111.  App.  488;  affirmed  (111 ) 

R.   Co.   v.   Whitacre   (Md.)   92  Atl.  107  N.  E.  595. 

1060;  Hench  v.  Pennsylvania  R.  Co.  "2  Devine  v.  Chicago,  R.  I.  &  P.  Ry. 

(Pa.)  91  Atl.  1056;  Knowles  v.  New  Co.  266  111.  248;  107  N.  E.  595. 
York,   N.   H.  &   H.   R.   R.   Co.   164 


316  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

ployed  in  interstate  commerce.  It  was  not  shown  that  they 
had  been  withdrawn  from  its  service.  The  reasonable  pre- 
sumption, therefore,  is  that  they  had  remained  in  it.  In 
practice  such  presumption  will  not  work  injustice.  The 
defendant  carrier  will  usually  have  little  difficulty  in  show- 
ing, when  it  wishes  to  do  so,  where  the  cars  were  to  be  taken 
and  for  what  purpose.  For  the  plaintiff  to  trace  them  may 
be  difficult  and  excessive.""^  But  in  a  state  court  it  was 
held  that  there  was  no  presumption  that  the  cars  being 
shifted  at  the  time  of  the  accident  were  intended  for  use 
in  interstate  commerce ;  and  the  failure  of  the  defendant  to 
produce  its  records  to  show  what  cars  were  being  moved  in 
the  freight  yard  on  the  night  of  the  accident  created  no 
presumption  that  the  cars  in  the  yard  were  being  used  in 
interstate  commerce,  where  the  defendant's  clerk  who  kept 
the  records  of  cars  testified  there  had  been  no  such  records 
of  the  particular  cars  in  the  freight  yard.^^*  The  Federal 
Act,  being  general  in  its  terms,  makes  no  specific  regulation 
as  to  the  quantity,  quality,  and  methods  of  proof  of  negli- 
gence, and  therefore  the  state  law  is  applicable  in  deter- 
mining what  is  proper  proof  and  sufficient  proof.  There- 
fore, it  was  held,  proof  that  the  injury  was  caused  by  de- 
fective appliances  made  out  a  prima  facie  case  of  negligence 
on  the  part  of  the  carrier,  that  being  the  rule  in  the  state 
courts. ^^^  And  in  another  case  it  was  said  of  the  Federal 
Act:  "The  statute  makes  the  mere  proof  of  the  existence 
of  defects  in  appliances  prima  facie  evidence  of  negligence ; 
and  that  having  been  shown,  it  throws  the  burden  of  dis- 
proving negligence  upon  the  employer. "^^"  "Where  the  ac- 
tion is  brought  by  an  administrator  for  the  benefit  of  the 
deceased's  mother  it  must  be  alleged  and  proven  that  the 
deceased  left  neither  widow  nor  children,  but  that  fact  may 

133  Wheeling  Terminal  Rj'.  Co.  v.  "^  Hench  v.  Pennsylvania  R.  Co. 

Russell,  207  P^ed.  795;  12G  C.  C.  A.  (Pa.)  91  Atl.  105G. 

519.  >35  Bennett  v.  Southern  Ry.  (S.  C.) 

Sufficient  proof  cars  were  used  in  79  S.  E.  710. 

interstate  commerce.     See  Pittsburg,  '■''«  South  Covington  &  C.  St.  Ry. 

C.  C.  &  St.  L.  R.  Co.  V.  Glenn,  219  Co.  v.  Finan,  153  Ky.  340:  155  S.  W. 

Fed.  148.  742. 


PLEADING   AND   PRACTICE.  3X7 

be  proven  inferentially.^^^  It  must  be  shown  that  the  injured 
person  was  an  employee  of  the  defendant  at  the  time  of  his 
injury.^^^  The  existence  of  a  beneficiary  within  the  pro- 
visions of  the  act  is  an  issuable  fact,  and  must  be  alleged 
and  proven.^-'" 

§  216.  Competency  of  witness. — The  state  law  must  be 
looked  to  in  order  to  determine  the  competency  of  a  person 
offered  as  a  witness  to  testify.^*"  But  it  has  been  held  that 
the  widow  may  testify  and  a  state  statute  providing  that  in 
similar  cases  she  cannot  testify,  has  no  application  to  an 
action  under  the  Federal  Act.^*^ 

§  217.  Instructions. — It  is  the  duty  of  the  court  to  in- 
struct the  jury  generally  concerning  the  Federal  statute  so 
far  as  it  applies  to  the  case  in  hand.  But  the  defendant 
cannot  complain  of  the  court's  action  in  failing  to  instruct 
under  that  statute,  which  destroys  the  defense  of  the  negli- 
gence of  a  fellow  servant,  where  the  jury  are  told  that  the 
plaintiff  could  not  recover  if  his  injuries  were  caused  by  a 
fellow  servant."^  This  is  upon  the  ground  that  the  rule  of 
law,  as  stated  in  the  instructions  given,  were  more  favor- 
able to  the  defendant  than  those  presented  by  the  Federal 
Act.^*^  Nor  can  the  defendant  complain  of  a  failure  of  the 
court  to  give  the  law  concerning  comparative  negligence,  as 
laid  down  in  the  statute,  where  the  instructions  given  per- 
mitted a  recovery  only  in  the  event  the  jury  should  find 
the  defendant  negligent  and  the  plaintiff  free  from  con- 
tributory negligence.^**     So   an   instruction   given   on   the 

1"  Moffett    V.    Baltimore    &    Ohio  St.  Louis  &  S.  F.  R.  Co.  v.  Conarty, 

R.  Co.  220  Fed.  39.  106  Ark.  421;  155  S.  W.  93. 

'38  Ft.    Worth    Belt    Ry.    Co.    v.  '<=  Atchison,  etc.,  R.  Co.  v.  Mills, 

Ferryman,  (Tex.  Civ.  App.);   158  S.  53  Tex.  Civ.  App.  359;  116  S.  W.  852. 

W.  1181.  '"Galveston,     etc.,     R.     Co.     v. 

'3"  Melzner  v.  Northern  Pacific  R.  Averill  (Tex.  Civ.  App.)  136  S.  W.  98; 

Co.   46  Mont.   162;   127   Pac.    1002;  Southern  R.  Co.  v.  Ansley,  8  Ga.  App. 

Thomas  v.  Chicago,  etc.,  R.  Co.  202  325;  68  S.  E.   1086;  Erie  R.  Co.  v. 

Fed.  766.  Kennedy,  191  Fed.  332;  112  C.  C.  A. 

'"  Bennett  v.  Southern  Ry.  (S.  C.)  76. 

79  S.  E.  710.  '4«  Atchison,  etc.,  R.  Co.  v.  Milk, 

'^'St.    Louis   &   S.    F.    R.    Co.   v.  53  Tex.   Civ.   App.  359;   116  S.  W. 

Fithian,  106  Ark.  491;  155  S.  W.  88;  852;     Galveston,     etc.,     R.     Co.     v. 

Averill  (Tex.  Civ.  App.)  136  S.  W.  98. 


318  FEDERAL  EMPLOYERS'   LIABILITY  ACT. 

theory  that  the  action  is  based  on  the  Federal  Act,  even 
though  erroneous,  because  not  warranted  by  the  pleadings, 
is  not  prejudicial  to  the  defendant,  unless  the  rules  of  lia- 
bility under  that  act  are  more  burdensome  than  those  under 
the  alternative  state  statute.  Thus,  where  the  complaint 
described  generally  the  right  of  action,  without  specifying 
whether  it  was  based  specifically  upon  the  Federal  or  a  state 
statute,  and  the  defendant  in  its  answer  set  up  that  the  plain- 
tiff was  engaged  in  interstate  commerce  when  injured,  that 
it  was  a  carrier  by  railroad  engaged  in  such  commerce,  but 
insisted  at  the  trial  that  the  case  did  not  fall  within  the 
Federal  Act,  because  the  complaint  did  not  so  bring  it ;  and 
the  court  instructed  the  jury  upon  the  theory  that  the  ac- 
tion was  based  upon  the  Federal  Act ;  it  was  held  that,  with- 
out regard  as  to  whether  the  case  properly  arose  under  the 
Federal  Act  or  the  state  law,  a  judgment  for  the  plaintiff  was 
correct,  the  instuctions  given  not  being  shown  to  be  more 
burdensome  to  the  defendant  than  would  have  been  had  they 
been  given  upon  the  theory  that  the  case  arose  under  the 
state  law.^*^  An  instruction  upon  the  assumption  of  risk  may 
be  refused  which  is  couched  in  such  general  and  sweeping 
terms  as  not  to  be  calculated  to  give  the  jury  an  accurate 
understanding  of  the  law  upon  that  subject,  or  to  direct 
their  attention  to  the  particular  phase  of  the  case  to  which 
it  is  deemed  applicable.^*"  An  instruction  for  a  recovery  un- 
der the  Federal  Act  when  the  evidence  does  not  show  a 
liability  under  it  should  be  refused.^*"  A  request  to  instruct 
the  jury  under  the  state  law  made  by  the  defendant  binds 
it  to  that  theory  of  the  case.*  Although  contributory  negli- 
gence is  not  a  bar  to  the  action,  and  is  considered  only  in 
fixing  the  amount  of  damages  recoverable,  yell  nevertheless 


''"'  Erie   R.   Co.   v.   Kennedy,    191  case  and   Erie   R.   Co.   v.   Kennedy, 

Fed.  332;  112  C.  C.  A.  76.  191  Fed.  332;  112  C.  C.  A.  76. 

'"Norfolk,  etc.,  R.  Co.  V.  Earnst,  '<' Vandalia    R.    Co.    v.    Stringer 

229  U.  S.  114;  33  Sup.  Ct.  654;  57  (Ind.)  lOfi  N.  E.  865. 

L.  Ed.  564.  *  Wabash  R.  Co.  v.  Hayes,  234  U. 

On    taking    exceptions    to    an    in-  S.  S6;  34  S.  C.  729;  58  L.  Ed.l226; 

Btruction,  where  no  unu.sual  point  of  affirming  180  111.  App.  511. 
practice   is   involved,   see   the   above 


PLEADING  AND   PRACTICE.  3]^9 

it  is  the  duty  of  the  court  to  give  the  jury  a  concrete  in- 
struction defining  the  acts  which  constitute  contributory 
neglect ;  and  a  failure  to  do  so  on  request  constitutes  re- 
versible error.^"*®  And  the  defendant  is  not  bound  to  tender 
concrete  instructions  on  the  measure  of  damages  where  con- 
tributory negligence  is  shown,  in  order  to  complain  of  the 
court's  instructions  on  the  measure  of  damages."^ 

§  218.  Question  for  jury — Damages. — The  negligence  of 
the  defendant  is  a  question  for  the  jury.'^°  When  the  facts 
concerning  whether  the  case  comes  within  the  Federal  stat- 
ute are  undisputed,  then  that  question  is  one  for  the  court  ;^^^ 
but  if  disputed  then  it  is  one  for  the  jury  under  the  instruc- 
tions of  tlie  court.'"  In  determining  tlie  damages  "the  jury 
may  take  into  consideration  the  age,  health,  and  expectancy  of 
life  of  the  deceased,  his  earning  capacity,  his  character,  his 
mode  of  treatment  of  his  family,  and  the  amount  contributed 
out  of  his  wages  to  them  for  their  support,  and  calculate 
from  these  facts  the  amount"  they  "as  reasonable  and 
practical  men,  believe  the  plaintiff's  loss  to  be  because  of  the 
death. "^^^  "Under  the  rule  of  comparative  negligence,  the 
jury  is  entitled  to  consider  all  the  circumstances  which 
characterize  the  negligence  of  either  party  and  which  tend 
to  fix  the  quantity  of  that  negligence  in  its  relation  to  the 
sum  total  of  the  negligence  of  both  parties.  Even  though 
the  negligence  of  both  parties  clearly  appears,  all  circum- 
stances of  aggravation  or  mitigation  must  be  considered. '  '^^* 

»8  Illinois     Central     Ry.     Co.     v.  Pittsburg,  C.   C.  &  St.  L.  R.  Co.  v. 

Nelson,  203  Fed.  957.  Glinn,  219  Fed.  148;  Erie  R.  Co.  v. 

'« Chesapeake  &  Ohio  Ry.  Co.  v.  Jacobus,   221    Fed.    335.      (See    this 

Dwyer,  157  Ky.  590;  163  S.  W.  752.  case   for  instructions  to  jury.)     See 

"Courts  should  point  out  applicable  also  208  Fed.  989;  126  C.  C.  A.  77; 

principles  with  painstaking  care  and  Clark    v.    Chicago,    G.    W.    R.    Co! 

diligently  exercise  their  full  powers  to  (Iowa)  152  N.  W.  635;  Koennecke  v. 

prevent  unjust  results."    Kansas  City  Seaboard  A.  L.  Ry.  (S.  C.)  85  S.  E. 

So.  R.  Co.  V.  LesHe,  35  Sup.  Ct.  844,  374;  Charpeski  v.  Great  Northern  Ry. 

reversing  112  Ark.  305;  167  S.  W.  83.  Co.  (Minn.)  150  N.  W.  1091. 

150  McCouIlough  V.  Chicago,  R.  I.  '"  American  R.  Co.  v.  Birch,  224 

&  P.  Ry.  Co.  160  Iowa,  452;  142  N.  U.  S.  547;  32  Sup.   Ct.  603;  56  L. 

W.  67;  Knapp  v.  Great  Northern  Ry.  Ed.  879;  Cain  v.  Southern  Ry.  Co. 

Co.  (Minn.)  153  N.  W.  848.  199  Fed.  211;  Kansas  City  So.  R.  Co. 

'*'  Gaber  v.  Duluth,  S.  S.  &  A.  Ry.  v.  Leslie,  35  Sup.  Ct.  844,  reversing 

Co.  (Wis.)  150  N.  W.  489.  112  Ark.  305;  167  S.  W.  83. 

1"  Gaber  v.  Duluth,  S.  S.  &  A.  Ry.  i"  New  York  C.  &  St.  L.  R.  Co. 

Co.    (Wis.)    150  N.   W.   489;   North  v.  Niebel,  214  Fed.  953.    Assumption 

Carolina  R.  Co.  v.  Zackary,  232  U.  of    risk,    usually,    and    contributory 

D.  248;  34  Sup.  Ct.  305;  58  L.  Ed.  591,  negligence  are  questions  for  the  jury, 

reversing  156  N.  C.  496;  72  S.  E.  858;  Knapp  v.   Great  Northern  Ry.  Co. 

(Minn.)  153  N.  W.  848;  Tonsellito  v. 
New  York  Cent.  &  H.  R.  R.  Co. 
(N.  J.)  94  Atl.  804. 


CHAPTER  XIII. 
APPEAL  AND  WRIT  OF  ERROR. 


SECTION  SECTION 

219.  On  appeal  from  Federal  court.       223.     Amount  in  controversy. 

220.  Appeal    from    State    court    to      224.     Penalty    assessed    against    ap- 

Federal  Supreme  court.  pellant. 

221.  How  question  raised  to  secure      224a.  Remittitur   of   excessive   dam- 

right  of  appeal.  ages. 

222.  What  questions  can  and  cannot 

be  raised  on  appeal. 

§  219.  On  appeal  from  Federal  court. — If  the  action  has 
been  brought  on  the  Federal  Act  it  is  the  duty  of  the  Fed- 
eral Supreme  Court  to  jDass  upon  all  questions  for  decision, 
even  though  they  do  not  involve  an  interpretation  of  the 
statute.^  If  the  lower  court  improperly  holds  that  the  em- 
ployee was  engaged  in  interstate  commerce  at  the  time  of 
the  accident,  an  appeal  lies  to  the  Federal  Supreme  Court.- 
When  the  validity  of  the  act  is  drawn  in  question,  an  appeal 
lies  direct  to  that  court.^  A  writ  of  error  lies  from  that 
court  to  review  a  judgment  of  a  circuit  court  of  appeals 
where  the  matter  in  controversy  exceeds  $1,000."^ 

§  220.     Appeal    from    state    court   to    Federal    Supreme 

Court. — An   ai)pcal   lies   from   a   State   Supreme   Appellate 
Court  to  the  Federal  Supreme  Court  only  where  a  consti- 

1  Southern  Ry.  Co.  v.  Gadd,  233  R.  Co.  229  U.  S.  146;  33  Sup.  Ct.  G48; 

U.  S.  572;  34  Sup.  Ct.  696;  58  L.  Ed.  67  L.  Ed.  648. 

— ;    Seaboard    Air    Line    R.    Co.    v.  '  Michigan  Central  R.  Co.  v.  Vree- 

Moore,  228  U.  S.  433;  33  Sup.  Ct.  land,  227  U.  S.  59;  33  Sup.  Ct.  192; 

580;  57  L.  Ed.  — ;  Chicago  Junction  57  L.  Ed.  417;  Norfolk,  etc.,  R.  Co. 

R.  Co.  V.  King,  222  U.  S.  222;  32  v.  Earnest,  229  U.  S.   114;  33  Sup. 

Sup.  Ct.  79;  56  L.  Ed.  173;  Chicago,  Ct.  654;  57  L.  Ed.  1096. 
R.  I.  &  P.  R.  Co.  V.  Brown,  229  U.  S.  "  Missouri,  etc.,  R.  Co.  v.  Wulf,  226 

317;  33  Sup.  Ct.  840;  57  L.  Ed.  1204;  U.  S.  570;  33  Sup.  Ct.  135;  57  L.  Ed. 

3  N.  C.  C.  A.  826.  274. 

^  Pedersen  v.  Delaware,  L.  &  W. 

320 


APPEAL   AND    WRIT    OF    ERROR.  321 

tutional  question  or  a  construction  of  the  Federal  Act  is 
involved,  as  where  the  trial  court  has  erroneously  construed 
the  statute,  or  refuses  to  give  a  particular  instruction  con- 
struing it  to  which  the  party  requesting  it  is  entitled ;  and  then 
only  when  the  question  is  properly  presented  and  saved. 
The  Federal  Supreme  Court  on  such  appeal  is  not  a  general 
court  of  review.^  This  includes  the  right  of  the  plaintiff  to 
recover  upon  or  the  defendant  to  be  shielded  from  liability 
under  a  proper  application  of  the  statute ;  and  also  includes 
the  question  whether  or  not  there  was  sufficient  evidence 
of  the  defendant's  liability  under  the  statute  to  warrant  a 
submission  of  the  case  to  the  jury.^  Such  as  where  a  recov- 
ery is  allowed  in  the  absence  of  proof  of  the  designated 
beneficiaries;''  or  the  state  court  permitted  a  beneficiary  to 
recover  who  sues  in  his  own  personal  capacity  f  or  error  in 
allowing  the  administrator  of  deceased  to  recover  for  pain 
and  suffering  before  the  amendment  of  1910.''  Ordinary 
questions  of  negligence  and  rulings  thereon  are  not  review- 
able, and  will  be  dealt  with  in  a  summary  manner ;  nor  is 
the  question  of  excessive  damages.^**  Questions  relating  to 
practice  and  procedure  being  governed  by  the  state  law  will 
not  be  reviewed."  An  appeal  does  not  lie  to  the  Federal 
Supreme  Court  on  merely  incidental  questions  not  Federal 
in  character — those  which  do  not  in  their  essence  involve 
the  existence  of  the  right  in  the  plaintiff  to  recover  under 
the  Federal  statute  to  which  his  recourse  by  the  pleadings 
was  exclusively  confined,  or  the  converse,  the  right  of  the  de- 


6  Seaboard   Air   Line    Ry.    Co.    v.  Seale,  229  U.  S.  156;  33  Sup.  Ct.  651; 

Duvall,  225  U.  S.  477;  32  Sup.  Ct.  57  L.  Ed.  1129. 

790;  57  L.  Ed.  — .  9  st.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 

6  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Hesterly,  228  U.  S.  702;  33  Sup.  Ct. 

McWhirter,  229  U.  S.  265;  33  Sup.  703;  57  L.  Ed.  1031. 

Ct.  858;  57  L.  Ed.  1177.  i"  Southern    Ry.    Co.    v.    Bennett, 

'  North  Carolina  R.  Co.  V.  Zackary,  233  U.  S.  80;  34  Sup.  Ct.  566;  57 

232  U.  S.  248;  34  Sup.  Ct.  305;  58  L.  Ed.  — ;  Missouri,  K.  &  T.  Ry.  Co. 

L.  Ed.  591,  reversing  156  N.  C.  456;  v.  West,  232  U.  S.  682;  34  Sup.  Ct. 

72  S.  E.  858;  Gulf  C.  &  S.  F.  Ry.  Co.  471;  57  L.  Ed.  — ;  38  Okla.  581;  134 

V.  McGinnis,  228  U.  S.  173;  33  Sup.  Pac.  655. 

Ct.  426;  57  L.  Ed.  785.  "  Brinkmeier    v.    Missouri    Pacific 

»St.  Louis,  S.  F.  &  T.  Ry.  Co.  v.  Ry.  Co.  224  IT.  S.  268;  32  Sup.  Ct. 

412;  57  L.  Ed.  758. 


322  FEDERAL   EMPLOYERS'   LIABILITY   ACT. 

fendant  to  be  shielded  from  responsibility  under  the  stat- 
ute, because  when  applied  no  liability  on  his  part  from  the 
statute  could  result/^  Where  a  state  court  decided  against 
the  plaintiff  to  the  effect  that  upon  the  evidence  he  as- 
sumed the  ordinary  common  law  risks,  when  he  contended 
that  he  did  not  because  his  right  to  recover  was  based  upon 
a  violation  of  the  safety  appliance  statute,  it  was  held  that 
a  question  was  presented  for  review  by  the  Federal  Supreme 
Court.12 

§  221.    How  question  raised  to  secure  right  of  appeal. — 

"Whether  or  not  the  question  was  governed  by  the  Federal 
Act  was  properly  raised  in  the  trial  court,  in  accordance 
with  the  pertinent  provisions  of  the  local  Code  of  Procedure 
is  immaterial,  where  it  appears  that  the  appellant  claimed 
a  right  to  recover  or  immunity  under  the  Federal  Act,  and 
the  highest  court  either  decided  or  assumed  that  the  record 
sufficiently  presented  a  question  of  Federal  right,  and  de- 
cided against  the  party  asserting  that  right.^*  A  question 
of  interpretation  of  the  Federal  Act  is  not  presented  for 
review  by  a  refusal  of  the  trial  court  on  defendant's  request 
to  take  the  case  from  the  jury  by  a  peremptory  instruction, 
wiiere,  taking  into  consideration  the  proof,  the  request  is 
absolutely  without  merit.  Such  a  question  is  not  raised  on 
a  record  which  shows  that  the  trial  court's  reply  to  an  ex- 
ception to  the  general  charge  based  on  the  court's  silence 

^-  Seaboard  Air  Line  Ry.  v.  Pad-  Whirter,  229  U.  S.  265;  33  Sup.  Ct. 

gett(U.  S.)35Sup.  Ct.  4S1;58L.  Ed.  858;  57  L.  Ed.   1179;  Seaboard  Air 

— ,  affirming  (S.   C.)   83  S.  E.  633;  Line   R.   Co.   v.   Horton,   233  U.   S. 

Missouri,  K.  &  T.  Ry.  Co.  v.  West,  492;  34  Sup.  Ct.  635;  58  L.  Ed.  1062. 

232  U.  S.  682;  34  Sup.  Ct.  471;  58  An   appeal    lies  from  a  State  Su- 

L.  Ed.  — ,  dismissing  writ  of  error  to  preme  court  to  the  Federal  Supreme 

38  0kla.  581;134Pac.655.  court.   Hardwick  v.  Wabash  R.  Co. 

■•'Southern   Ry.   Co.   v.   Crockett,  181   Mo.  App.   156;  168  S.  W.  328. 

234  U.  S.  725;  34  Sup.  Ct.  897;  58  i^  North  Carolina  R.  Co.  v.  Zach- 

L.  Ed.  1564,  citing  St.  Louis,  I.  M.  &  ary,  232  U.  S.  248;  34  Sup.  Ct.  305; 

S.  R.  Co.  V.  Taylor,  210  U.  S.  281;  57  L.  Ed.  591,   reversing  156  N.  C. 

28  Sup.   Ct.   616;   52   L.   Ed.    1061;  496;  72  S.  E.  858;  St.  Louis,  L  M. 

21  Am.  Neg.  Rep.  464;  Seaboard  Air  &  S.  Ry.  Co.  v.  Hesterly,  228  U.  S. 

Line   R.  Co.   v.    Duvail,   225  U.   S.  702;  33  Sup.  Ct.  703;  57  L.  Ed.  1031, 

477;  -.',2  Sup.  Ct.  790;  5()  L.  Ed.  1171;  reversing  98  Ark.  240;  135  S.  W.  874; 

St.  Loui.s,  L  M.  <t  S.  R.  Co.  v.  Mc-  Toledo,  St.  L.  &  W.  R.  Co.  v.  Slavin, 

236  U.  S.  454;  35  Sup.  Ct.  306. 


APPEAL  AND   WRIT    OF   ERROR.  323 

concerning  the  assumption  of  risk,  that  he  understood  the 
doctrine  to  have  been  abolished  by  that  statute,  was  so 
qualified  as  to  convey  clearly  that,  as  the  matter  to  which 
the  excepted  charge  related  purely  concerned  the  common 
law  principles  of  fellow  servant  and  contributory  negli- 
gence, they  were  controlled  by  the  provisions  of  the  statute, 
and  there  was  nothing  in  the  excepted  portion  of  the  charge 
which  in  any  possible  way  was  relevant  to  the  doctrine  of 
the  assumption  of  risk — especially  as  this  question  was  not 
presented  by  any  request  to  charge,  nor  raised  on  a  motion 
for  a  new  trial,  nor  referred  to  in  the  assignments  of  error 
either  in  the  Circuit  Court  of  Appeals  or  in  the  Supreme 
Court.^^  If  the  evidence  shows  that  the  case  is  governed  by 
the  Federal  Act,  and  the  defendant  so  contends  at  the  trial, 
the  question  is  sufficiently  presented  to  enable  it  to  raise 
its  liability  under  the  act,  even  though  the  pleadings  are  not 
based  on  the  act.^^  A  decision  of  a  state  court,  having  sub- 
stantial support  in  the  record,  that  the  pleadings  and  evi- 
dence in  an  action  for  the  death  against  an  interstate  rail- 
way company  demonstrates  that  the  deceased  was  in  the 
employ  of  an  express  company,  and  that  therefore  the  de- 
fendant's liability  was  not  controlled  by  the  Federal  Lia- 
bility Act,  involves  no  denial  of  any  asserted  Federal  right, 
and  is  not  reviewable  in  the  Federal  Supreme  Court/^  A 
judgment  of  compulsory  nonsuit  in  an  action  brought  in  a 
Federal  district  court  under  the  employers'  liability  statute, 
which  rests  upon  the  ground  that  the  evidence  at  the  trial 


"Southern  R.  Co.  v.  Gadd,  233  858;  58  L.  Ed.  1179,  reversing  145 

U.  S.  572;  34  Sup.  Ct.  696;  58  L.  Ed.  Ky.  427;  140  S.  W.  672. 

— ,  affirming  207  Fed.  277.  This  is  especially  true  if  the  ap- 

*^  Toledo,  St.  L.  &  W.  R.  Co.  v.  pellant's    contention    if    acceded    to 

Slavin,    (U.    S.);    35    Sup.    Ct.   306;  would    probably    produce    a    verdict 

58  L.  Ed.  — ,  reversing  88  Ohio  St.  in  its  favor.     Seaboard  Air  Line  Ry. 

536;  106  N.  E.  1077;  St.  Louis,  S.  F.  Co.  v.  Horton,  233  U.  S.  492;  34  Sup. 

&  T.  Ry.  Co.  V.  Seale,  229  U.  S.  156;  Ct.  635;  58  L.  Ed.  1062,  reversing  162 

33  Sup.  Ct.  651;  57  L.  Ed.  1129,  re-  N.  C.  424;  78  S.  E.  494. 

versing  (Tex.  Civ.  App.)   148  S.  W.  ''Missouri,   K.   &  T.   Ry.   Co.   v. 

1099;  Missouri,  K.  &  T.  Ry.  Co.  v.  West,  232  U.  S.  682;  34  Sup.  Ct.  471; 

Lenahan,  39  Okla.  283;  135  Pac.  382;  58  L.  Ed.  — ,  dismissing  writ  of  error. 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Mc-  Decision  in  lower  court,  38  Okla.  581; 

Whirter,  229  U.  S.  265;  34  Sup.  Ct.  134  Pac.  655. 


324  FEDERAL,   EMPLOYERS'   LIABILITY   ACT. 

did  not  disclose  that  the  plaintiff  when  injured  was  en- 
gaged in  interstate  commerce,  does  not  present  a  question 
as  to  the  power  of  that  court  as  a  Federal  court  to  hear  and 
determine  the  case  under  the  Judicial  Code/^  to  sustain  a 
direct  writ  of  error  from  the  Federal  Supreme  Court,  sued 
out  on  the  ground  that  the  jurisdiction  below  was  in  issue. ^"^ 
The  Federal  Supreme  Court  will  analyze  the  evidence  on 
a  writ  of  error  to  the  extent  necessary  to  give  the  plaintiff 
in  error  the  benefit  of  its  asserted  Federal  right.-°  "Where 
the  facts  pleaded  show  a  cause  of  action  under  the  Federal 
statute,  but  the  case  is  tried  upon  the  theory  that  it  was  a 
common  law  action ;  this  was  held  that  the  judgment  should 
be  affirmed,  the  plaintiff'  having  proved  all  he  was  required 
to  prove  under  the  Federal  statutes  and  more  besides.  This 
was  held  to  be  a  mere  irregularity,  and  not  one  governed  by 
the  one  definite  theory  line  of  cases.-^ 

§  222.  What  questions  can  and  cannot  be  raised  on  ap- 
peal.— The  theory  on  which  the  case  was  tried  cannot  be 
changed  on  appeal  to  secure  a  reversal.--  A  request  to  in- 
struct the  jury  under  the  state  law  made  by  the  plaintiff 
binds  him  to  that  theory.-^  If  the  defendant  insists  at  the 
trial  that  the  case  is  governed  by  a  state  statute,  on  appeal 
he  cannot  insist  that  it  is  governed  by  the  Federal  Act.-* 
The  defendant  cannot  question  the  pleadings  for  the  first 
time   on  appeal.-^     Pleading   contributory  negligence,   and 

>8  Judicial   Code,    §   238;   76   Stat.  ^4  minols  Central  R.  Co.  v.  Egan, 

at  L.  1157,  chap.  231;  U.  S.  Comp.  supra. 
Stat.  Supp.  1911,  p.  228.  25  g^ith   v.   Northern   Pacific   Ry. 

"Farrugia   v.    Philadelphia   &    R.  Co.    79   Wash.    448;    140    Pac.    685; 

R.  Co.  233  U.  S.  352;  34  Sup.  Ct.  591;  Chicago,  R.  I.  &  P.  Ry.  Co.  v.  Holli- 

58  L.  Ed.  — .  day  (Okla.)  145  Pac.  786. 

2°  North  Carolina  R.  Co.  v.  Zach-  It  has  been  held  that  where  there 

ary,  232  U.  S.  248;  34  Sup.  Ct.  305;  is  a  failure  to  bring  the  suit  on  the 

58  L.  Ed.  591,  reversing  15GN.  C.  496;  Federal  Act,  but  the  evidence  shows 

72  S.  E.  858.  a  cause  of  action  under  it,  tliere  can 

-'  Southern  Ry.  Co.  v.   Howerton  be  no  reversal  where  a  state  statute 

(Ind.)    105    N.    E.    1025.      See    also  forbids    a    reversal    unless    there    be 

Chicago  &  N.  W.  Ry.  Co.  v.  Gray,  error    affecting    the    merits    of    the 

237  U.  S.  399;  Yazoo  &  M.  V.  R.  Co.  action.     Mcintosh  v.  St.  Louis  &  S. 

V.  Wright,  235  U.  S.  376;  35  Sup.  F.   R.   Co.   182  Mo.   App.   288;    168 

Ct.  130.  S.  W.  821. 

'■'-  Illinois  Central  R.  Co.  v.  Egan, 
203  Fed.  9:}7;  122  C.  C.  A.  239. 

2'WabaHli  R.  Co.  v.  Hayes,  234 
U.  S.  86;  31  Sup.  Ct.  729;  .58  L.  Ed. 
1226,  afiirrning   ISO  111.  App.  511. 


APPEAL  AND   WRIT    OF   ERROR.  325 

thus  having  relied  upon  a  state  law,  is  not  an  estoppel,  since 
the  plaintiff  and  not  the  defendant  had  the  election  how 
the  suit  should  be  brought,  and  as  he  relied  upon  the  state 
law  the  defendant  has  no  choice  if  it  was  to  defend  upon 
the  facts  pleaded.-*'  If  it  be  not  contended  in  the  lower 
court  that  the  Federal  Act  applies,  it  cannot  be  so  con- 
tended on  appeal.-'^  The  question  of  misjoinder  cannot  be 
raised  for  the  first  time  on  appeal.-^* 

§  223.  Amount  in  controversy. — A  writ  of  error  lies  to 
review  the  decision  of  a  Circuit  Court  of  Appeals  affirming 
a  judgment  of  the  district  court  where  the  matter  in  con- 
troversy exceeds  one  thousand  dollars.-^ 

§  224.  Penalty  assessed  against  appellant. — Five  percent 
damages  will  be  awarded  by  the  United  States  Supreme 
Court  under  its  rule  numbered  23  upon  an  affirmance  of  a 
judgment  of  the  Circuit  Court  of  Appeals,  where  the  con- 
tentions that  the  interpretation  of  the  Federal  Liability  Act 
was  involved  are  wholly  lacking  in  merit,  especially  where 
the  only  questions  presented  for  decision  are  those  of  gen- 
eral law,  as  to  which  it  does  not  clearly  appear  that  any 
error  had  been  committed.-^ 

§  224a.  Remittitur  of  excessive  damages. — Where  an  er- 
roneous basis  was  given  the  jury  by  the  court  upon  which 
to  estimate  the  damages,  and  the  court  deemed  the  damages 
excessive,  the  court  refused  to  order  a  remittitur  so  it  could 
affirm  the  judgment.    "We  are  not  aware,"  said  the  court, 

'^  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Where  evidence  is  rejected   which 

Hesterly,  228  U.  S.  702;  33  Sup.  Ct.  would  have  made  the  defendant's 
703;  57  L.  Ed.  1031,  reversing  98  case  worse,  the  error  will  not  be 
Ark.  240;  135  S.  W.  874.  reviewed.    Chicago  &  N.  W.  Ry.  Co. 

"  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.       v.  Gray,  35  Sup.  Ct.  620,  affirming 
Coke  (Ark.)  175  S.  W.  1177;  Graber       153  Wis.  637;  142  N.  W.  505. 
v.  Duluth,  S.  S.  &  A.  R.  Co.  (Wis.)  "'  Louisville  &  N.  R.  Co.  v.  Flem- 

150  N.  W.  489.  ing  (Ala.)  69  So.  125.     Questions  of 

As  to  what  is  not  a  Federal  ques-  general  law,  involving  no  construction 
tion  where  a  brakeman  went  between  of  the  Federal  Statute,  will  not  be 
the  cars  to  couple  them,  in  violation  reviewed  on  appeal  from  a  State 
of  a  rule  of  the  company,  when  the  Supreme  Court.  Central  Vt.  R.  Co. 
couplers  would  not  work,  see  Minne-  v.  White,  35  Sup.  Ct.  865,  affirming 
apohs,  S.  &  P.  S.  Ry.  Co.  v.  Popplar,  87  Vt.  330;  89  Atl.  618. 
35  Sup.  Ct.  609,  affirming  121  Minn.  "'  Missouri,   K.   &   T.   Ry.   Co.   v. 

413;  141  N.  W.  798;  Ann.  Cas.  1914  Wulf,  226  U.  S.  570;  33  Sup.  Ct.  135; 
D.  383.  57  L.  Ed.  274,  affirming  192  Fed.  919; 

113  C.  C.  A.  665. 

29  Southern  Ry.  Co.  v.  Gadd,  233 
U.  S.  572;  34  Sup.  Ct.  696;  58  L.  Ed. 
— ,  affirming  207  Fed.  277. 


326  FEDERAL  EMPLOYERS'   LIABILITY   ACT. 

"of  any  instance  where  the  practice  has  been  adopted  by  a 
Federal  appellate  court  in  which  the  elements  of  damages 
were  of  such  indeterminate  character  that  there  was  no 
criterion  for  segregation.  In  view  of  the  manifest  merit  of 
the  practice,  we  are  not  prepared  to  hold  that  it  may  never 
be  adopted  in  any  case  where  the  verdict  is  based  on  these 
indeterminate  elements ;  it  may  sometimes  clearly  enough, 
apear  from  the  whole  record  that  the  damages  resting  on 
the  erroneous  foundation  cannot  be  more  than  a  certain 
amount  and  that  there  can  be  no  injustice  in  providing 
that  the  verdict  may  stand  if  the  plaintiff  will  remit  the 
amount.  However  this  might  be,  we  think  the  present  case 
is  not  one  of  those  where  a  remittitur  can  be  permitted. 
First,  what  portion  of  the  whole  damages  was  represented 
by  the  verdict  after  a  proportionate  deduction  on  account 
of  contributory  negligence;  second,  what  portion  of  the 
verdict  was  considered  as  damages  to  the  widow ;  third, 
what  portion  of  these  damages  to  the  widow  was  for  loss 
of  society  as  distinguished  from  loss  of  support.  As  the 
record  stands,  to  sanction  a  reduction  in  the  judgment  now 
and  so  to  cure  the  error  in  the  charge  would  require  us 
either  to  find  an  unknown  fraction  of  an  unknown  portion 
of  an  unknown  whole,  or  else  to  allow  so  liberally  for  these 
uncertainties  as  to  put  upon  the  plaintiff  a  greater  and  more 
unjust  burden  than  is  imposed  by  the  award  of  a  new 
trial.  "^° 

'"  New  York  C.  &  St.  L.  Ry.  Co.  v.  damages  are  excessive  will  not  be 
Niebel,  214  Fed.  952.  On  an  appeal  considered.  St.  Louis,  I.  M.  &  So. 
to  the  Supreme  Court  from  a  State  Ry.  Co.  v.  Craft,  35  Sup.  Ct.  704; 
Supreme   Court   the  claim    that    the      237  U.  S.  648,  affirming  (Ark.)   171 

S.  W.  1185. 


PART   II. 


Safety  Appliance  Acts. 


CHAPTER  XIV. 

ORIGIN,  OBJECT,  CONSTITUTIONALITY  AND  INTER- 
PRETATION OF  STATUTE. 

SECTION  SECTION 

225.  Origin  of  Safety  Appliance  Act.       230.     Interpretation   of   statute. 

226.  Resolution  of  American   Rail-      231.     State     legislation      concerning 

way  Association.  safety  appliances. 

227.  Object  of  statute.  232.     Common   carrier   and   railroad 

228.  Constitutionality  of  statute.  defined. 

229.  Federal    control    of    interstate 

commerce. 

§  225.  Origin  of  Safety  Appliance  Act. — The  origin  of 
the  Safety  Appliance  Act  was  largely  due  to  President  Har- 
rison, who  repeatedly  urged  its  passage  upon  Congress,  both 
in  public  messages  and  privately  upon  individual  congress- 
men. In  his  first  annual  message  to  Congress  on  December  3, 
1889,  he  used  this  language :  ' '  The  attention  of  the  Inter- 
state Commerce  Commission  has  been  called  to  the  urgent 
need  of  congressional  legislation  for  the  better  protection  of 
the  lives  and  limbs  of  those  engaged  in  operating  the  great 
interstate  freight  lines  of  the  country,  and  especially  of  the 
yardmen  and  brakemen.  A  petition,  signed  by  nearly  ten 
thousand  railway  brakemen,  was  presented  to  the  commission 
asking  that  steps  might  be  taken  to  bring  about  the  use  of 
automatic  brakes  and  couplers  on  freight  trains.  At  a  meet- 
ing of  state  railroad  commissioners  and  their  accredited  rep- 
resentatives, held  at  Washington  in  March  last,  upon  the 
invitation  of  the  Interstate  Commerce  Commission,  a  resolu- 
tion was  unanimously  adopted  urging  the  commission  'to 
consider  what  can  be  done  to  prevent  the  loss  of  life  aiud 
limbs  in  coupling  and  uncoupling  freight  cars  and  in  hand- 
ling the  brakes  of  such  cars.'  During  the  year  ending  June 
30,  1888,  over  two  thousand  railroad  employes  were  killed  in 
service,  and  more  than  twenty  thousand  injured.     It  is  com- 

329 


330  FEDERAL  SAFETY  APPUANCE  ACT. 

petent,  I  think,  for  Congress  to  require  uniformity  in  the 
construction  of  cars  used  in  interstate  commerce  and  the  use 
of  improved  safety  appliances  upon  such  trains.  Time  will 
be  necessary  to  make  the  needed  changes,  but  an  earnest  and 
intelligent  beginning  should  be  made  at  once.  It  is  a  re- 
proach to  our  civilization  that  any  class  of  American  work- 
men should,  in  the  pursuit  of  a  necessary  and  useful  vocation, 
be  subject  to  a  peril  of  life  and  limb  as  great  as  that  of  a 
soldier  in  time  of  war. "  ^  In  his  annual  message  of  December 
1,  1890,  President  Harrison  again  said:  "It  may  still  be 
possible  for  this  Congress  to  inaugurate,  by  suitable  legisla- 
tion, a  movement  looking  to  uniformity  and  increased  safety 
in  the  use  of  couplers  and  brakes  upon  freight  trains  engaged 
in  interstate  commerce.  The  chief  difficulty  in  the  way  is  to 
secure  agreement  as  to  the  best  appliances,  simplicity,  ef- 
fectiveness and  cost  being  considered.  This  difficulty  will 
only  yield  to  legislation,  which  should  be  based  upon  full  in- 
quiry and  impartial  tests.  The  purpose  should  be  to  secure 
the  co-operation  of  all  well  disposed  managers  and  owners; 
but  the  fearful  fact  that  every  year 's  delay  involves  the  sacri- 
fice of  two  thousand  lives  and  the  maiming  of  twenty  thou- 
sand young  men  should  plead  both  with  Congress  and  the 
managers  against  any  needless  delay."-  In  his  annual  mes- 
sage of  December  9,  1891,  he  again  said:  "I  have  twice 
before  urgently  called  the  attention  of  Congress  to  the  neces- 
sity of  legislation  for  the  protection  of  the  lives  of  railroad 
employes,  but  nothing  has  yet  been  done.  During  the  year 
ending  June  30,  1890,  369  brakemen  were  killed  and  7,841 
maimed  while  engaged  in  coupling  cars.  The  total  number  of 
railroad  employes  killed  during  the  year  was  2,451,  and  the 
number  injured  22,390.  This  is  a  cruel  and  largely  needless 
sacrifice.  The  government  is  spending  nearly  $1,000,000  an- 
nually to  save  the  lives  of  shipwrecked  seamen ;  every  steam 
vessel  is  rigidly  inspected  and  re(piired  to  adopt  the  most  ap- 
proved safety  appliances.     All  this  is  good.     But  how  shall 

'  MesHa^eH  and  Papers  of  Presi-  =  Messajjcs    and    Papers    of    the 

dents,  Vol.   0,   p.  51.  Presidents,  Vol.  9,  p.   126. 


ORIGIN,   OBJECT,    ETC.,    OF    STATUTE.  ^31 

we  excuse  the  lack  of  interest  and  effort  in  behalf  of  this 
army  of  brave  young  men  who  in  our  land  commerce  are 
sacrificed  every  year  by  the  continued  use  of  antiquated  and 
dangerous  appliances?  A  law  requiring  of  every  railroad 
engaged  in  interstate  commerce  the  equipment  each  year  of  a 
given  per  cent,  of  its  freight  cars  with  automatic  couplers 
and  air  brakes  would  compel  an  agreement  between  the  roads 
as  to  the  kind  of  brakes  and  couplers  to  be  used,  and  would 
very  soon  and  very  greatly  reduce  the  present  fearful  death 
rate  among  railroad  employes." '  In  his  final  annual  mes- 
sage of  December  5,  1892,  he  again  alluded  to  the  subject  as 
follows :  "In  renewing  the  recommendation  which  I  have 
made  in  three  preceding  annual  messages  that  Congress  should 
legislate  for  the  protection  of  railroad  employes  against  the 
dangers  incident  to  the  old  and  inadequate  methods  of  brake- 
ing  and  coupling  which  are  still  in  use  upon  freight  trains,  I 
do  so  with  the  hope  that  this  Congress  may  take  action  upon 
the  subject.  Statistics  furnished  by  the  Interstate  Commerce 
Commission  show  that  during  the  year  ending  June  30,  1891, 
there  were  fortj^-seven  styles  of  car  couplers  reported  to  be  in 
use,  and  that  during  the  same  period  there  were  2,660  em- 
ployes killed  and  26,140  injured.  Nearly  sixteen  per  cent,  of 
the  deaths  occurred  in  the  coupling  and  uncoupling  of  cars 
and  over  thirty-six  per  cent,  of  the  injuries  had  the  same 
origin."*  As  a  result  of  these  messages,  President  Harri- 
son, on  March  2,  1893,  two  days  before  the  expiration  of  his 
term  of  office,  had  the  satisfaction  of  realizing  the  fruition 
of  his  recommendations  and  endeavors,  and  in  signing  the 
present  Safety  Appliance  Act.     On  April   1,  1896,  Section  6 

^Messages    and    Papers    of    the  ling,    the    demand    for    protection, 

Presidents,  Vol.  9,  p.  208.  and    the    necessity    of    automatic 

*  Messages    and    Papers    of    the  couplers  coupling  interchangeably. 

Presidents,    Vol.    9,    p.    331.      See  Johnson    v.    Southern    Pacific    Co. 

also   Senate    Report   of   the    First  196  U.  S.  1 ;  25  Sup.  Ct.  Rep.  158. 

Session  of  the  52nd  Congress  (No.  For    debates    in    Congress    on    the 

1049)    and   the    House    Report  of  Safety     Appliance     Act.     see     24 

the  same  session   (No.  1678),  set-  Cong.  Rec,  pt.  2,  pp.  1246,   1273, 

ting    out    the    numerous    and    in-  et  seq. 
creasing   casualties    due    to    coup- 


332  FEDERAL  SAFETY  APPLI^VNCE  ACT. 

of  the  act  was  amended;  and  on  IMarch  2,  1903,  a  supple- 
mentary act  was  adopted.^ 

§  226.  Resolutions  of  American  Railway  Association.— 
On  June  6,  1893,  the  American  Railway  Association,  pursuant 
to  the  provisions  of  Section  5,  adopted  and  certified  to  the 
Interstate  Commerce  Commission  the  following  resolutions, 
viz:  (1)  "Eesolved,  That  the  standard  height  of  draw  bars 
for  freight  cars,  measured  perpendicular  from  the  level  of 
the  tops  of  the  rails  to  the  center  of  the  draw  bars,  for 
standard  gauge  railroads  in  the  United  States,  shall  be  thirty- 
four  and  one-half  inches,  and  the  maximum  variation  from 
such  standard  heights  to  be  allowed  between  the  draw  bars  of 
empty  and  loaded  cars  shall  be  three  inches. "  (2)  Resolved, 
That  the  standard  height  of  draw  bars  for  freight  cars, 
measured  perpendicular  from  the  level  of  the  tops  of  the  rails 
to  the  centers  of  the  draw  bars,  for  the  narrow  gauge  rail- 
roads in  the  United  States,  shall  be  twenty-six  inches,  and  the 
maximum  variation  from  such  standard  height  to  be  allowed 
between  the  draw  bars  of  empty  and  loaded  cars  shall  be 
three  inches."  ° 

§  227.  Object  of  statute — Construction,— It  is  clear  that 
the  intention  of  Congress  in  the  passage  of  the  Safety 
Appliance  Act  was  to,   in   a  measure  secure   the  safety  of 

'  Tlie    act    provided    that    auto-  provision   of   the   Federal    statute, 

malic  couplers  should  be  used  on  authorizing  the  American  Railway 

and    after    January    1,    1898.    but  Association    to    fix    the    height    of 

the  Interstate  Commerce  Comniis-  drawbars,     is     constitutional,     and 

sion  extended  the  time  two  vears.  ^I'^it  the  action  of  that  association 

and     subsequentlv     seven     months  i^  valid  and  binding  on  interstate 

longer.     .Johnson  v.   Southern  Pa-  ^-'^^^'^^^  companies.      St.   Louis    I. 

eifie  Co     supra  ^^-  ^  «•  ^y-  Co.  v.  Neal,  83  Ark. 

cine  ^o.    supra  ^^^^     ^^  ^   ^^^    ^^^      ^^^  ^  ^^ 

"  Interstate     Commerce     Report,         ,   /,  .  ,    ,  •  ,  «?        i 

,£,„„  -.      nnn        ox      T      •  of  this  casc    ( whicli  WRs  amrmed, 

1S93      pp.     74,     263        ^t-J^om.,       ^^  ^    ^^    ^   g  ^^    ^_ 

etc.,  Ry    Co    v^  lay^r,  210  US.  Baylor,  210  U.  S.  281;   52  L.  Ed. 

2«1'   286;    28   Sup.   Ct.   Rep    616;  j^g^     '33   g         ct.   616),   see   Chi- 

fJ\J'i-  w  '/    %ol    I',  '^^  -^^     B.    &   Q.    R.    Co.    V.    United 

.of'   II  «    w    ?P-   o-o'  '■  '^^^t<>s,  220  U.  S.  559;  31  Sup.  Ct. 

591;   98  f5.   W.  Kep.  Ja;).  612;  55  L.  Ed.  582,  and  Union  Bridge 

A  state  court  has  held  that  the  ^^   ^   ^r^jted  States,  204  U.  S.  364; 

27  Sup.  Ct.  367. 


ORIGIN,    OBJECT,    ETC.,    OP^    STATUTE. 


333 


employees  of  railroads  in  moving  cars  in  interstate  com- 
merce/ "Obviously  the  purpose  of  this  statute  is  the  pro- 
tection of  the  lives  and  limbs  of  men,  and  such  statutes, 
when  the  words  fairly  permit,  are  so  construed  as  to  prevent 
the  mischief  and  advance  the  remedy."*  "The  obvious 
purpose  of  the  legislature  was  to  supplant  the  qualified 
duty  of  the  common  law  with  the  absolute  duty  deemed  by 
it  more  just. "^^  "The  law  was  intended  to  protect  the 
lives  and  safety  of  all  employees,  whether  they  are  reason- 


7  United  iStates  v.  Southern  Pa 
cific  Oo.  154  Fed.  Rep.  897 
Crawford  v.  New  York,  etc.,  R 
Co.  10  Amer.  Neg.  Rep.  166 
United  States  v.  Southern  Ry.  Co 
135  Fed.  Rep.  122;  St.  Louis  & 
S.  F.  R.  Co.  V.  Delk,  86  C.  C.  A. 
9'5;  158  Fed.  9.31;  14  Amer.  and 
Eng.  Ann.  Gas.  233.  Referring  to 
the  opinion  in  this  case  just  cited, 
altliough  reversing  it,  the  Supreme 
Court  of  the  United  States  said: 
"The  Circuit  Court  of  Appeals 
well  said,  in  the  present  case,  that 
while  tlie  general  purpose  of  tlie 
statute  was  to  promote  the  safety 
of  employees  and  travelers,  its 
immediate  purpose  was  to  providfe 
a  particular  mode  to  effect  that 
result,  namely,  the  equipping  of 
each  car  used  in  moving  inter- 
state traffic  with  couplers,  coupling 
automatieally  by  impact  and  which 
can  be  uncoupled  witliout  the  neces- 
sity of  men  going  between  the  ends 
of  the  cars."  Delk  v.  St.  Louis  & 
S.  F.  R.  Co.  220  U.  S.  580;  31 
Sup.  Ct.  617;  55  L.  Ed.  590. 

8  Chicago,  etc.,  R.  Oo.  v.  Voel- 
ker,  129  Fed.  Rep.  522;  65  C.  C. 
A.  65;  70  L.  R.  A.  264;  Sohlem- 
mer  v.  Buffalo,  etc.,  R.  Go.  205 
U.  S.  1;  27  Sup.  Ct.  Rep.  407;  51 
L.  Eel  681;  reversing  207  Pa.  St. 
398;   56  Atl.   417;   Atlantic  Coast 


Line  R.  Co.  v.  United  States,  168 
Fed.  Rep.  175  (decided  March  1, 
1909);  Wabash  R.  Co.  v.  United 
States,  168  Fed.  Rep.  1  (decided 
February  3,  1909);  Southern  Ry. 
Co.  V.  Snyder,  187  Fed.  492; 
United  States  v.  Illinois  Cent.  R. 
Cb.  177  Fed.  801. 

"I  do  not  know  whether  statis- 
tics are  obtainable  as  to  whether 
the  judgments  obtained  against 
and  expense  incurred  by  the  com- 
panies were  greater  than  those 
incurred  in  putting  on  the  auto- 
matic coupler.  But  aside  from 
all  that,  an  undoubted  purpose  of 
Congress  was  humanitarian.  The 
purpose  was  to  end  the  maiming 
and  killing  of  the  vas.t  army  of 
men  engaged  in  railroad  work. 
And  that  the  results  have  been 
good  one  now  needs  but  look  at  the 
court  dockets  and  the  men  newer 
in  the  railroad  service  and  read 
the  statistics  of  the  past  few 
years."  United  States  v.  Chicago, 
etc.,   Ry.    Oo.    149   Fed.   Rep.   486. 

8a  St.  Louis,  I.  M.  Ry.  Co.  v. 
Taylor,  210  U.  S.  281;  28  Sup.  Ct. 
61G;  52  L.  Ed.  1061;  Johnson  v. 
Great  Northern  Ry.  Oo.  178  Fed. 
643;  CMcago,  B.  &  Q.  R.  Co.  v. 
United  States,  220  U.  S.  559;  31 
Sup.  Ct.  612;   55  L.  Ed.  582. 


334 


FEDERAL   SAFETY   APPLIANCE   ACT. 


ably  prudent  or  not."^^  "The  Safety  Appliance  Act  is  a 
remedial  statute,  and  must  be  so  construed  as  to  accomplish 
the  intent  of  Congress.  Its  provisions  'should  not  be  taken 
in  a  narrow  sense.'  Nor  should  its  undoubted  humanitarian 
purpose  be  frittered  away  by  judicial  construction."^^  "The 
act  upon  its  face  showed  that  its  object  was  to  promote  the 
safety  of  employees  and  travelers  upon  railroads.  "^^ 

§  228.  Constitutionality  of  statute. — There  is  no  serious 
question  concerning  the  constitutionality  of  the  Safety  Ap- 
pliance Act.  It  has  been  expressly  held  to  be  constitutional.^ 


81  United  States  v.  Chicago,  M.  & 
St.  P.  Ry.  Co.  Appendix  G;  United 
States  V.  Southern  Ry.  Co.  Appendix 
G;  United  States  v.  St.  Louis  S.  W. 
Ry.  Co.  Appendix  G;  United  States 
V.  Chicago  Great  Western  Ry.  Co. 
162  Fed.  775. 

*-  Snyder  v.  Southern  Pacific  Ry. 
Co.  187  Fed.  492. 

The  construction  of  the  language 
of  the  Safety  Appliance  Acts  is 
not  controlled  by  the  language  or 
by  the  interpretation  of  the  terms 
of  the  act  to  regulate  commerce. 
Pacific  Coast  R.  Co.  v.  United 
States,  173  Fed.  448;  United 
States  V.  Colorado  &  N.  W.  R.  Co. 
157    Fed.    321. 

"The  amendment  of  1903,  32 
Stat,  at  L.,  943,  had  three  objects: 
First,  to  extend  the  Safety  Appli- 
ance Act  to  traffic  in  the  District 
of  Columbia  and  the  territories; 
second,  to  remove  the  doubt  as  to 
the  meaning  of  tlie  term  'cars'  as 
used  in  the  Act,  created  by  the 
decision  of  this  court  in  the  John- 
son Case,  117  Fed.  462;  third,  to 
enlarge  the  scope  of  the  Safety 
Appliance  Act,  so  as  to  include 
not  only  'the  cars,  locomotives, 
tenders,  and  similar  vehicles,'  etc. 
therein  referred  to,  but  also  to 
embrace  'all  other  locomotives, 
tenders,  cars,  and  similar  vehicles 
VLsex}  in  connection  therewith." 
Chicago  &  N.  W.  Ry.  Co.  v. 
United  States,  168  Fed.  236. 

"  Adair  v.  United  States,  208  U.  S. 
161;  28  Sup.  Ct.  277;  52  L.  Ed.  436. 


'  United  States  v.  Atlantic, 
etc.,  R.  Co.  153  Fed.  Rep.  918; 
Pliiladelphia,  etc.,  R.  Co.  v.  Wink- 
ler, 4  Pennewill  (Del.),  387; 
56  Atl.  Rep.  112;  affirmed,  4  Del. 
80;  53  Atl.  Rep.  90;  Spain  v, 
St.  Louis,  etc.,  R.  Co.  151  Fed. 
Rep.  522;  Plummer  v.  Northern 
Pac.  Ry.  152  Fed.  Rep.  206;  St. 
Louis,  etc.,  Ry.  Co.  v.  Taylor,  210 
U.  S.  281;  28  Sup.  Ct.  Rep.  616; 
52  L.  Ed.  1061;  S.  C.  74  Ark. 
445;  78  S.  W.  Rep.  220;  83 
Ark.  591;  98  S.  W.  Rep.  959; 
Union  Bridge  Co.  v.  United  States, 
204  U.  S.  364;  Britfield  v.  Stana- 
han,  192  U.  S.  470;  Kansas  City, 
3tc.,  R.  Co.  V.  Flippo,  138 
Ala.  487 ;  35  So.  Rep.  457 ;  United 
States  V.  Chicago,  etc.,  Ry.  Co. 
149  Fed.  Rep.  486;  United  States 
V.  Great  Northern  Ry.  Co.  145 
Fed.  Rep.  438;  Chicago  Junction 
Ry.  Co.  V.  King,  169  Fed.  372; 
United  States  v.  Baltimore  &  O. 
R.  Co.  Appendix  — ;  Chicago,  R.  I. 
&  P.  Ry.  Co.  185  Fed.  80;  United 
States  V.  Boston  &  M.  R.  Co.  168 
Fed.  148;  Southern  Ry.  Co.  v. 
Snyder,   187   Fed.  492. 

The  Act  of  1903  (Stat  at  L., 
943,  Chap.  976)  in  aid  of  the 
statute  did  not  render  the  original 
act  unconstitutional.  United  States 
V.  Wheeling  &  L.  E.  R.  Oo.  167 
Fed.  198;  Southern  Ry.  Oo.  v. 
United    States,    222    U.    S.    20;    32 


ORIGIN,   OBJECT,    ETC.,    OP   STATUTE.  335 

In  passing  upon  the  Federal  Employers'  Liability  Act  in  the 
Supreme  Court  of  the  United  States,  the  court  refers  to  two 
cases  ^**  as  settling  the  question  of  the  validity  of  the  Safety 
Appliance  Act.^^  In  still  another  case  in  the  United  States 
Supreme  Court  the  question  of  the  validity  of  the  statute 
was  practically^  settled.^-  And  in  a  recent  decision  the 
validity  of  this  statute  has  been  put  at  rest  by  the  Supreme 
Court,  even  holding  that  it  is  valid  as  to  intrastate  cars 
moved  over  an  interstate  railroad.  The  court  said:  "We 
come,  then,  to  the  question  whether  those  acts  are  within 
the  power  of  Congress  under  the  commerce  clause  of  the 
Constitution,  considering  that  they  are  not  confined  to 
vehicles  used  in  moving  interstate  traffic,  but  embrace  vehi- 
cles used  in  moving  intrastate  traffic.  The  answer  to  this 
question  depends  upon  another,  which  is,  Is  there  a  real 
or  substantial  relation  or  connection  between  what  is  re- 
quired by  those  acts  in  respect  of  vehicles  used  in  moving 
intrastate  traffic,  and  the  object  which  the  acts  obviously 
are  designed  to  attain;  namely,  the  safety  of  interstate 
commerce  and  those  who  are  employed  in  its  movement? 
Or,  stating  it  another  way.  Is  there  such  a  close  or  direct 
relation  or  connection  between  the  two  classes  of  traffic, 
when  moving  over  the  same  railroad,  as  to  make  it  certain 
that  the  safety  of  the  interstate  traffic  and  of  those  who 
are  employed  in  its  movement  will  be  promoted  in  a  real 
or  substantial  sense  by  applying  the  requirements  of  these 
acts  to  vehicles  used  in  moving  the  traffic  which  is  intra- 

Sup.  Ct.  2;    56  L.  Ed.   72;   affirm-  lo  Johnson  v.   Southern  Pac.  Co. 

ing     164     Fed.     347;     Watson     v.  196    U.    S.    1;    25    Sup.    Ct.    Rep. 

St.  Louis,  I.  M.  &  S.  Ry.  Co.  169  158;   49  L.  Ed.  363;   reversing  54 

Fed.  942;   Adair  v.  United  States,  C.  C.  A.  508;   117  Fed.  Rep.  462; 

208   U.   S.    167;    38   Sup.   Ct.   277;  and  Sclilemmer  v.  Buffalo,  etc.,  R. 

52    L.    Ed.    436;     Atlantic    Coast  Co.  205  U.  S.   1;  27  Sup.  Ct.  Rep. 

Line   v.    United    States,    168    Fed.  407;  51  L.  Ed.  681;  reversing  207 

175;     Wabash    R.    Co.    v.    United  Pa.  St.  198;  56  Atl.  Rep.  417. 

States.  168  Fed.  1;  Kelly  v.  Great  n  Employee's  Liability  Act,  207 

Northern    Ry.    Co.    152*111.    211;  U.  S.  463;"  28  Sup.   Ct.  Rep.   143; 

United  States  v.  Wheeling  &  L.  E.  52  L.  Ed.  297. 

R.  Co.  167  Fed.  198;  United  States  12  St.  Louis,  etc.,  R.  Co.  v.  Tay- 

V.  Pennsylvania  Co.,  Appendix.  lor,   210  U.   S.   281;    28    Sup.   Ct. 

Rep.  616;   52  L.  Ed.  1061. 


336  FEDERAL  SAFETY  APPLIANCE  ACT. 

state  as  ^vell  as  to  those  used  in  moving  that  which  is  inter- 
state? If  the  answer  to  this  question,  as  doubly  stated,  be 
in  the  affirmative,  then  the  principal  question  must  be 
answered  in  the  same  way.  And  this  is  so,  not  because 
Congress  possesses  any  power  to  regulate  intrastate  com- 
merce as  such,  but  because  its  power  to  regulate  interstate 
commerce  is  plenary,  and  competently  may  be  exerted  to 
secure  the  safety  of  the  persons  and  property  transported 
therein  and  of  those  who  are  employed  in  such  transporta- 
tion, no  matter  what  may  be  the  source  of  the  danger 
which  threatens  it.  That  is  to  say,  it  is  no  objection  to  such 
an  exertion  of  this  power  that  the  dangers  intended  to  be 
avoided  were,  in  whole  or  in  part,  out  of  matters  connected 
with  intrastate  commerce.  Speaking  only  of  railroads 
which  use  highways  of  both  interstate  and  intrastate  com- 
merce, these  things  are  of  common  knowledge :  Both  classes 
of  traffic  are  at  times  carried  in  the  same  car,  and  when  this 
is  not  the  case,  the  cars  in  which  they  are  carried  are 
frequently  commingled  in  the  same  train  and  in  the  same 
switching  and  other  movements  at  terminals.  Cars  are 
seldom  set  apart  for  exclusive  use  in  moving  either  class 
of  traffic,  but  generally  are  used  interchangeably  in  moving 
both;  and  the  situation  is  much  the  same  with  trainmen, 
switchmen,  and  like  employees,  for  they  usually,  if  not 
necessarily,  have  to  do  with  both  classes  of  traffic.  Besides, 
the  several  trains  on  the  same  railroad  are  not  independent 
in  point  of  movement  and  safety,  but  are  interdependent; 
for  whatever  brings  delay  or  disaster  to  one,  or  results  in 
disabling  one  of  its  operatives,  is  calculated  to  injure  the 
progress  and  imperil  the  safety  of  other  trains.  And  so 
the  absence  of  appropriate  safety  appliance  from  any  part 
of  any  train  is  a  menace  not  only  to  that  train,  but  to  others. 
These  practical  considerations  make  it  plain,  as  we  think, 
that  the  questions  before  stated  must  be  answered  in  the 
affirmative.'"-^ 

I'jfi  Soutliem     Ry.  Co.     United  104  Fed.  347.     For  a  criticism  of 

Stati'H,    222    U.    S.  20;    32    Sup.  tliis   decision,   sec   73   Cent.   L.   Jr. 

C't     2-    50    L.    Ed.  72;    ;i(lirniiiu'  423.     To  same  effect  is  Texas  &  P. 

'  Ky.   Co.   V.   Kigsby,   222  Fed.   221. 


ORIGIX,    OBJECT,    ETC.,    OF    STATUTE.  337 

§  229.     Federal    control   of  interstate    commerce. — ' '  The 

power  to  regulate  eoinnierce  among  the  states  is  general 
and  includes  authority  to  regulate  all  its  parts,  (1)  the  sub- 
jects of  commerce,  the  articles,  information,  intelligence 
transported  from  state  to  state;  (2)  the  transactions  of  com- 
merce, the  merchants,  carriers,  laborers  who  carry  it  on ; 
(3)  the  means,  the  vehicles,  the  cars,  steamboats,  coaches, 
wagons  by  which  subjects  of  commerce  are  carried;  (4)  the 
operation,  the  contracts,  terms,  rates  under  w^hich  it  is  con- 
ducted."^ "In  so  far  as  commerce  can  be  regulated  and 
controlled,  it  falls  within  the  power  of  a  state  or  of  Congress. 
To  say  that  it  falls  within  the  power  of  neither  is  to  argue 
an  absurdity,  and  to  say  tliat  up  in  the  air  somewhere  is  a 
subject-matter  not  grappled  with  by  either  the  state  or 
nation.  I  do  not  for  one  moment  believe  in  that  kind  of 
talk."-  "The  people  of  the  United  States  carved  out  of 
their  sovereign  power,  reserved  from  the  states,  and  granted 
to  the  Congress  of  the  United  States  exclusive  and  plenary 
power  to  regulate  commerce  among  the  states  and  with  for- 
eign nations.  That  power  is  not  subordinate,  but  is  para- 
mount to  all  the  powers  of  the  states.  If  its  independent 
and  lawful  exercise  of  this  congressional  power  and  the 
attempted  exercise  by  a  state  of  any  of  its  powers  infringe 
or  conflict,  the  former  must  prevail  and  the  latter  must  give 
w^ay.  The  Constitution  and  the  acts  of  Congress  passed  in 
pursuance  thereof  are  the  supreme  law"  of  the  land.  "^  One 
system  of  regulation  of  interstate  commerce  is  alone  ap- 
propriate ;*  and  a  state  statute  which  attempts  to  regulate 
interstate  commerce  or  conflicts  with  a  valid  Federal  regu- 
lation of  such  commerce  is  void.^    And  this  true  even  though 


1  United  States  v.  Colorado  &  N.  W.  R.  Co.  157  Fed.  321;  Wabash  R. 

W.  R.  Co.  157  Fed.  321.  Co.  v.  United  States,  168  Fed.  1. 

-  United  States  v.  Chicago  &  M.  "  United  States  v.  Southern  Ry.  Co. 

St.  P.  Ry.  Co.  149  Fed.  486.  164  Fed.  347. 

3  United  States  v.  Colorado  <fe  N.  ^  Northern  Pacific  Ry.  Co.  v.  State, 


338 


FEDERAL   SAFETY   APPLIANCE   ACT. 


the  limitations  of  the  state  enactment  are  less  stringent 
than  those  permitted  by  the  Federal  statute.*'  But  a  state 
statute  which  merely  regulates  the  instrumentalities  of  com- 
merce without  encroaching  upon  the  prerogatives  of  the 
Federal  government  is  valid  as  an  exercise  of  the  police 
power  of  the  state.'^  The  safety  appliance  act  of  a  state  is 
not  invalid  as  being  repugnant  to  the  Federal  Acts  if  the 
provisions  of  the  former  are  consistent  with  the  latter  with 
respect  to  the  appliances  prescribed.®  In  the  regulation  of 
interstate  commerce  Congress  may  incidentally  regulate  in- 
trastate or  local  commerce.^  The  regulation  of  interstate 
commerce  conprehends  the  power  to  regulate  its  agencies 
and  instrumentalities  ;^°  and  the  rails  and  roadway  of,  as 
well  as  the  cars  used  on,  interstate  railroads  are  instru- 
mentalities of  interstate  commerce.^^  The  obstruction  of 
interstate  commerce  is  unlawful.^^ 


222  U.  S.  370;  32  Sup.  Ct.  160;  56 
L.  Ed.  237;  Erie  R.  Co.  v.  New  York, 
233  U.  S.  671;  34  Sup.  Ct.  756;  58 
L.  Ed.  1149.  reversing  198  N.  Y.  369; 
91  N.  E.  849;  Detroit,  T.  &  I.  Ry. 
Co.  V.  State,  91  N.  E.  869;  State  v. 
Missouri  Pacific  Ry.  Co.  Ill  S.  W. 
500;  State  v.  Texas  &  N.  O.  R.  Co. 
124  S.  W.  984;  State  v.  Wabash  R. 
Co.  141  S.  W.  646;  State  v.  Northern 
Pacific  Ry.  Co.  93  Pac.  945;  State 
V.  Chicago,  AI.  &  St.  P.  Ry.  Co.  117 
N.  W.  686. 

« State  V.  Chicago,  M.  &  St.  P.  Ry. 
Co.  117  N.  W.  686;  State  v.  Northern 
Pacific  Ry.  Co.  93  Pac.  945;  State  v. 
Missouri  Pacific  Ry.  Co.  Ill  S.  W. 
501;  State  v.  Texas  &  N.  O.  R.  Co. 
124  S.  W.  984;  State  v.  Wabash  R. 
Co.  141  S.  W.  646;  Erie  R.  Co.  v. 
New  York,  233  U.  S.  671;  34  Sup. 
Ct.  756;  58  L.  Ed.  1149,  reversing  198 
N.  Y.  369;  91  N.  E.  849. 

7  Detroit,  T.  &  I.  Ry.  Co.  v.  State, 
91  N.  E.  869. 

*  Southern    Ry.    Co.    v.    Railroad 


Com.,  179  Ind.  23;  100  N.  E.  337; 
Luken  v.  Lake  Shore  &  M.  S.  Ry.  Co. 
94  N.  E.  175;  Pittsburg,  C.  C.  &  St. 
L.  Ry.  Co.  V.  State,  87  N.  E.  1034. 

^  Southern  Ry.  Co.  v.  United  States, 
222  U.  S.  20;  32  Sup.  Ct.  2;  56  L.  Ed. 
72. 

"  United  States  v.  Great  Northern 
Ry.  Co.  145  Fed.  438;  United  States 
v.  Southern  Ry.  Co.  164  Fed.  347. 

^'  United  States  v.  Southern  Ry. 
Co.  164  Fed.  347;  United  States  v. 
Wheeling  &  L.  E.  R.  Co.  167  Fed. 
198. 

^-  United  States  v.  Southern  Ry. 
Co.  164  Fed.  347;  Debs  Case,  158 
U.  S.  564;  15  Sup.  Ct.  900;  39  L. 
Ed.  1092. 

The  statute  applies  to  Porto  Rico 
by  reason  of  the  Foraker  Act  of  April 
12,  1900  (31  Stat,  at  L.  80,  chap.  19, 
§  14).  American  R.  Co.  v.  Did- 
rickson,  227  U.  S.  145;  33  Sup.  Ct. 
224;  57  L.  Ed.  456,  reversing  5  Porto 
Rico,  Fed.  Rep.  401,  427. 


ORIGIN,    OBJECT,    ETC.,    OP    STATUTE.  339 

§  230.  Interpretation  of  statute. — The  statute  is  to  be 
construed  liberally,  as  it  were,  for  the  protection  of  the  em- 
ploye. It  requires  of  the  railroad  company  a  strict  com- 
pliance with  its  terms.  It  was  enacted  for  the  preservation  of 
the  life  and  limbs  of  the  employe,  and  to  place  upon  the  em- 
ployer, so  far  as  possible,  the  burden  of  the  loss  the  employe 
has  sustained  by  reason  of  his  employer  having  failed  to  com- 
ply with  the  requirements  of  the  statute  in  the  construction 
or  car  eouplers.^^  In  a  suit  by  the  United  States  against  a 
railroad  to  recover  a  penalty,  it  has  been  held  that  the  ac- 
tion is  a  criminal  one  and  the  same  interpretation  should  be 
applied  to  the  statute  as  is  applied  to  the  usual 
penal  statute.^*  On  the  other  hand,  in  a  suit  by 
the  United  States,  it  is  said:  "This  act  of  Con- 
gress is  a,  remedial  statute,  and  it  is  the  duty  of  the  court  to 
so  construe  its  provisions  as  to  accomplish  the  intent  of  Con- 
gress— to  protect  the  lives  and  limbs  of  men  engaged  in  inter- 
state commerce. "^^  "The  primary  object  of  the  act,"  said 
Chief  Justice  Fuller,  "was  to  promote  the  public  welfare  by 
securing  the  safety  of  employes  and  travelers,  and  it  was  in 
that  aspect  remedial,  while  for  violation  a  penalty  of  one 
hundred  dollars,  recoverable  in  a  civil  action,  was  provided 
for,  and  in  that  aspect  was  penal.  But  the  design  to  give 
relief  was  more  dominant  than  to  infliet  punishment,  and  the 
act  might  well  be  held  to  fall  within  the  rule  applicable  to 
statutes  to  prevent  fraud  upon  the  revenue,  and  for  the  col- 
lection of  customs,  that  rule  not  requiring  absolute  strictness 

"  Plummer  v.  Northern  Pac.  Ry.  486;  United  States  v.  Great  Northern 

152  Fed.  Rep.  206;  United  States  v.  Ry.  Co.  150  Fed.  Rep.  229;  Southern 

Atlantic,  etc.,  R.  Co.  153  Fed.  Rep.  Ry.  Co.  v.  Crockett,  234  U.  S.  725; 

918;  Wabash  R.  Co.  v.  United  States,  34 Sup.  Ct.897;  58 L.Ed.  1564;  United 

168  Fed.  Rep.  1  (decided  February  3,  States  v.  Chicago,  M.  &  P.  S.  Ry. 

1909),  see  St.  Louis,  etc.,  Ry.  Co.  v.  Co.   197  Fed.  624;  United  States  v. 

Taylor,  210  U.  S.  281;  28  Sup.  Ct.  Denver  &  R.  G.  R.  Co.  197  Fed.  629; 

Rep.  616;  52  L.  Ed.   1061;  s.  c.  74  Pennell  v.  Philadelphia  &  R.  Ry.  Co. 

Ark.  445;  78  S.  W.  220;  83  Ark.  591;  231  U.  S.  675;  34  Sup.  Ct.  220;  58 

98   S.   W.   Rep.   959;   Schlemmer  v.  L.  Ed.  430,  affirming  203  Fed.  681; 

Buffalo,   etc.,   R.   Co.   205  U.   S.   1;  Southern  Ry.  Co.  v.  United  States, 

27  Sup.  Ct.  Rep.  407;  51  L.  Ed.  681,  222  U.  S.  20;  32  Sup.  Ct.  2;  56  L. 

reversing  207   Pa.   St.    198;   56   Atl.  Ed.  72. 

Rep.  417;  United  States  v.  El  Paso,  '*  United   States   v.   lUinois   Cent, 

etc.,   R.   Co.   reported  in  Appendix;  R.  Co.  156  Fed.  Rep.  182. 

United  States  v.   Southern  Ry.   Co.  '*  United  States  v.  Central  of  Ga. 

135  Fed.  Rep.  122;  United  States  v.  Ry.  157  Fed.  Rep.  893. 
Chicago,  etc.,  R.  Co.  149  Fed.  Rep. 


340 


FEDERAL,  SAFETY  APPIJANCE  ACT. 


of  construction."^^  The  construction  of  the  language  of 
the  Safety  Appliance  Act  is  not  controlled  by  the  inter- 
pretation of  the  terms  of  the  act  to  regulate   commerce. ^^ 


§  231.      State  legislation  concerning  safety  appliances. — 

In  a  number  of  states,  laws  have  been  enacted  with  ref- 
erence to  safety  appliances  on  railroad  locomotives,  cars 
and  vehicles;  and  it  is  important  to  know  whether  those 
laws  are  valid  in  view^  of  the  power  of  Congress  to  legis- 
late upon  that  subject  under  the  interstate  commerce  clause. 
Although  broad  enough  in  its  terms,  the  Federal  Safety 
Appliance  Act  does  not  apply  to  cars  wholly  engaged  in 
intrastate  commerce  and  not  used  on  a  highway  of  inter- 
state commerce.^^  The  state  of  Ohio  enacted  a  law  in 
almost  the  exact  language  of  the  Federal  Safety  Appliance 
Act  with  reference  to  automatic  couplers,  but  limited  it  to  a 
"locomotive,  car,  tender,  or  similar  vehicle  used  in  moving 
state  traffic."     In  an  action  against  an  interstate  railroad 


"  Johnson  v.  Southern  Pac.  Ry. 
Co.  196  U.  S.  1;  25  Sup.  Ct.  Rep. 
158,  reversing  54  C.  C.  A.  508;  117 
Fed.  Rep.  462;  United  States  v. 
Colorado,  etc.,  R.  Co.  157  Fed.  Rep. 
321;  Chicago,  etc.,  R.  Co.  v.  King, 

169  Fed.  Rep.  372  (decided  February 
3,  1909);  Wabash  Ry.  Co.  v.  United 
States,  168  Fed.  Rep.  1  (decided 
February  3,  1909);  Atlantic,  etc.,  R. 
Co.  V.  United  States,  168  Fed.  Rep. 
175  (decided  March  1,  1909). 

"The  act  of  Congress  is  a  remedial 
statute,  and  it  is  the  duty  of  the  court 
to  so  construe  its  provisions  as  to 
accomplish  the  intent  of  Congress — 
to  protect  the  lives  and  limbs  of  men 
engaged  in  interstate  commerce." 
United  States  v.  Central  of  Ga.  Ry. 
Co.  157  Fed.  Rep.  893;  Southern  Ry. 
Co.  v.  Snyder,  187  Fed.  492;  United 
States   V.   Baltimore  &   O.    Ry.   Co. 

170  Fed.  456;  Southern  Ry.  Co.  v. 
Crockett,  234  U.  S.  725;  34  Sup.  Ct. 
725;  58  L.  Ed.  — ;  United  States  v. 
Southern  Ry.  Co.  135  Fed.  122; 
United  States  v.  Chicago,  B.  &  Q. 
Ry.  Co.  156  Fed.  180;  United  States 
V.  Central  of  Georgia  Ry.  Co.  157 
Fed.  893;  Unitf^d  States  v.  Southern 
Ry.  Co.  170  Fed.  1014;  United  States 
V.  Chicago,  R.  I.  &  r.  Ry.  Co.  173 
Fed.  084;  United  States  v.  Illinois 
Central  R.  Co.  177  Fed.  801;  United 
States  v.  St.  Louis  S.  W.  Ry.  Co. 
184  Fed.  28;  Southern  Ry.  Co.  v. 
Snyder,  187  Fed.  492;  Gray  v. 
Louisville  <t  N.  R.  Co.  197  Fed.  874; 
United  States  v.  Pere  Marquette 
R.    Co.    211    Fed.    220;    Lake   Shore 


&  M.  S.  Ry.  Co.  V.  Benson,  97  N. 
E.  417;  La  Mere  v.  Ry.  Trans.  Co. 
125  Minn.  159;  145  N.  W.  1068; 
Missouri  Pacific  v.  Brinkmeier,  77 
Kan.  14;  93  Pac.  621;  Luken  v. 
Lake  Shore  &  M.  S.  Ry.  Co.  154  111. 
App.  550;  United  States  v.  St.  Louis 
S.  W.  Ry.  Co.  189  Fed.  954;  United 
States  V.  Chicago,  M.  &  P.  S.  Ry. 
Co.  197  Fed.  624;  United  States  v. 
Atlantic  Coast  Line  R.  Co.  211  Fed. 
897;  United  States  v.  Northern 
Pacific  Ry.  Co.  213  Fed.  539. 

"  Pacific  Coast  Ry.  Co.  v.  United 
States,  173  Fed.  448  (but  see  United 
States  V.  Geddes,  Appendix);  United 
States  V.  Chicago  G.  W.  Ry.  Co. 
162  Fed.  775;  Voelker  v.  Chicago,  M. 
&  St.  P.  Ry.  Co.  116  Fed.  867;  United 
States  V.  Chicago,  R.  I.  &  P.  Ry.  Co. 
173  Fed.  684;  United  States  v. 
Chicago,  M.  &  St.  P.  Ry.  Co.  149 
Fed.  486;  United  States  v.  Southern 
Ry.  Co.  135  Fed.  122;  United  States 
V.  Southern  Ry.  Co.  170  Fed.  1014; 
United  States  v.  Atlantic  Coast  Line 
R.  R.  Co.  153  Fed.  918;  United 
States  v.  Illinois  Central  P.  R.  Co. 
150  Fed.  182;  United  States  v. 
Chicago  &  N.  W.  Ry.  Co.  157  Fed. 
616;  United  States  v.  Terminal  R. 
Assn.  Appendix  G. 

'8  Loui.sville  &  N.  R.  Co.  186  Fed. 
280;  Employers'  Liability  Cases, 
207  U.  S.  463;  28  Sup.  Ct.  141;  52 
L.  Ed.  297;  United  States  v.  Erie 
R.  Co.  166  Fed.  352;  Detroit,  T.  & 
I.  Ry.  Co.  V.  State,  83  Ohio  St.  273; 
94  N.  E.  175. 


ORIGIN,   OBJECT,    ETC.,    OF    STATUTE.  ^^l 

company  to  recover  a  penalty  for  failing  to  equip  a  railroad 
car  "moving  in  state  traffic,"  the  defendant  set  up  that  the 
car  was  used  on  its  interstate  railroad  and  was  not  therefore 
subject  to  the  Ohio  statute.  In  the  discussion  of  the  case 
counsel  for  the  defendant  road  asked  three  questions,  and 
contended  that  each  of  them  should  receive  an  answer  in 
the  affirmative:  "(1)  Does  the  fact  that  the  car  in  question 
was  commonly  and  usually  employed  in  interstate  traffic, 
although  it  was  at  the  particular  time  actually  carrying 
intrastate  traffic,  subject  it  to  the  Federal  control  in  such 
wise  as  to  take  it  out  of  state  control?  (2)  Does  the  fact 
that  it  was  a  part  of  a  train  containing  other  cars  loaded 
with  interstate  traffic  (and  which  are  therefore  subject  to 
the  Federal  Act)  have  the  effect  to  bring  this  particular  car 
also  within  the  operation  of  the  Federal  Act  in  such  wise  as 
to  take  it  out  of  state  control?  (3)  Does  the  fact  that  the 
railroad  was  commonly  and  usually  employed  in  interstate 
commerce  and  that  defendant  was  engaged  in  business  as 
an  interstate  carrier,  have  such  effect?"  The  court  an- 
swered each  of  those  questions  in  the  negative,  saying:  "If 
the  statute  regulates  interstate  commerce,  or  creates  regu- 
lations in  conflict  with  Federal  regulation  of  such  commerce, 
it  is  invalid.  In  Atlantic  Coast  Line  Railroad  Company  v. 
Wharton,^^  it  is  held  that  'Any  exercise  of  state  authority, 
whether  made  directly  or  through  the  instrumentalities  of 
a  commission,  which  directly  regulates  interstate  commerce 
is  repugnant  to  the  commerce  clause  of  the  Federal 
Constitution.'  The  statute  in  question  does  not  purport  to 
be  a  regulation  of  interstate  traffic,  but  is  limited  strictly 
to  the  moving  of  traffic  from  one  point  to  another  in  the 
state,  and  it  is  evident  from  its  various  requirements  as  well 
as  its  title  that  it  was  passed  in  the  exercise  of  the  police 
po%ver  of  the  state  to  promote  the  safety  in  the  state  of 
employees  and  travelers  upon  railroads,  and  without  any 
thought  or  intention  of  meddling  with  interstate  commerce." 

18  207    U.    S.    328;    28    Sup.    Ct.       121;    52  L.  Ed.  230. 


342  FEDERAL  SAFETY  APPLIANCE  ACT. 

The  court  then  quoted  from  the  Federal  Safety  Appliance 
Act  as  well  as  from  a  Federal  decision  -**  passing  upon  a 
state  statute  on  the  subject  of  automatic  couplers,  and  says : 
"Our  statute  does  not  conflict  with  the  Federal  statute  in 
the  character  of  the  coupler,  but  require  the  same  kind 
of  coupler,  and  was  passed  to  promote  the  same  object, 
though  under  a  different  power,  and,  while  no  doubt  it  was 
enacted  to  apply  to  cars  assumed  not  to  be  covered  by  the 
Federal  statute,  it  is  not  unreasonable,  and  is  not  void 
merely  because  a  failure  to  equip  the  car  with  automatic 
couplers  would  subject  the  railroad  company  to  punishment 
under  a  state  statute,  as  well  as  under  the  act  of  Congress. 
'The  same  act  or  service  of  act  may  constitute  an  offense 
equally  against  the  United  States  and  the  state,  subjecting 
the  guilty  party  to  punishment  under  the  laws  of  each 
government.'*^  The  regulation  of  commerce  among  the 
states  is  within  the  exclusive  jurisdiction  of  Congress,  but  it  is 
well-settled  that  a  state  statute,  enacted  in  the  exercise  of  its 
police  power,  not  regulating  or  directly  affecting  inter- 
state commerce  or  in  conflict  with  Federal  regulation,  but 
merely  regulating  the  instrumentalities  of  commerce,  is  not 
void;  and  when  such  state  regulations  do  conflict  with 
Federal  regulations  they  are  not  void  on  the  ground  that 
the  state  has  exercised  a  power  exclusively  in  Congress, 
but  because  the  Constitution  and  the  laws  of  the  United 
States  made  in  pursuance  thereof  are  the  supreme  laws  of 
the  land."  The  court  then  quotes  from  Ashell  v.  Kanas,'^ 
that  "while  the  state  may  not  legislate  for  the  direct  control 
of  interstate  commerce,  a  proper  police  regulation  which 
does  not  conflict  with  the  Congressional  legislation  on  the 
subject  involved  is  not  necessarily  unconstitutional,  because 
it  may  have  an  indirect  effect  upon  interstate  commerce," 
and  also  from  Missouri   Pacific  Railway  Company  v.  Lara- 


zoVoelker     v.     Chicago,     M.     &  U.    S.   (131;    10    Sup.    Ct.   47;    46 

,St.   P.   Ky.   Co.    12)9   Fed.  522;    re-  L.  Ed. 

versing  110  led.  807.  -2  200   U.    S.   261;    28   Sup.   Ct. 

2iCroB.-4  V.   North   Carolina,   132  4«5;    52  L.  Ivd.   778. 


ORIGIN,    OBJECT,    ETC.,    OF    STATUTE.  343 

hee  Flour  Mills  Company,-^  when  a  peremptory  writ  of  man- 
damus was  allowed  by  the  Supreme  Court  of  Kansas,  com- 
manding one  railroad  company  to  transfer  cars  to  and  from 
a  mill  or  another  railroad,  and  which  was  affirmed,  in  which 
it  was  said  by  Mr.  Justice  Brewer:  "The  roads  are,  there- 
fore, engaged  in  both  interstate  commerce  and  that  within 
the  state.  In  the  former  they  are  subject  to  the  regulation 
of  Congress ;  in  the  latter  to  that  of  the  state,  and  to  enforce 
the  proper  relation  between  Congress  and  the  state,  the  full 
control  of  each  over  the  commerce  subject  to  its  dominion 
must  be  preserved."  "Running  through  the  entire  argument 
of  counsel  for  the  Missouri  Pacific  is  the  thought  that  the 
control  of  Congress  over  interstate  commerce  and  a  dele- 
gation of  that  control  to  a  commission  necessarily  withdraws 
from  the  state  all  power  in  respect  to  regulation  of  a  local 
character.  This  proposition  cannot  be  sustained."  The 
court  also  quotes  from  the  dissenting  opinion  of  Mr.  Justice 
Moody:  "I  venture  to  think  that  the  weight  of  authority 
establishes  the  following  principles :  The  commerce  laws  of 
the  Constitution  vests  the  power  to  regulate  interstate  com- 
merce exclusively  in  the  Congress  and  leaves  the  power  to 
regulate  intrastate  commerce  exclusively  in  the  states. 
Both  powers  being  exclusive,  neither  can  be  directly  ex- 
cised except  by  the  government  in  which  it  is  vested. 
Though  the  state  may  not  directly  control  interstate  com- 
merce, it  may  often  indirectly  affect  that  commerce  by  the 
exercise  of  other  governmental  powers  with  which  it  is 
undoubtedly  clothed.  And  this  indirect  affect  may  be  al- 
lowed to  operate  until  the  Congress  enacts  legislation  con- 
flicting with  it,  to  which  it  must  yield  as  the  paramount 
power."  The  Ohio  court  then  adds:  "It  follows  that  the 
question  propounded  by  counsel  should  receive  a  negative 
answer. ' '  -*     But   in   view   of   the   recent   decision   of   the 

23  211  U.  S.  612;  29  Sup.  Ct.  A  similar  decision  has  been  ren- 
214;  53  L.  Ed.  352.  dered    upon    a    Nebraska    statute 

24  Detroit,  T.  &  I.  Ry.  Co.  v.  which  provided  that  "in  all  actions 
State,  i82  Ohio  .St.  60;  91  N.  E.  hereafter  brought  against  any  rail- 
869.  way   company  to   recover   damages 


314 


FEDERAL    SAFETY    APPLIANCE    ACT. 


Supreme  Court  of  the  United  States  holding  that  intrastate 
ears  moving  on  "  a  highway  of  interstate  commerce, "  ^^  it 
may  be  questioned  whether  the  Oliio  statute  is  not  void;  for 
the  Federal  Safety  Appliance  Act  applies  in  exactly  the 
same  way  to  cars  and  in  state  commerce  in  Ohio  as  does  the 
Ohio  statute;  and  Congress  having  taken  over  to  itself 
legislation  on  that  point,  can  the  state  legislate  upon  it? 
But  we  think  the  answer  to  this  is  that  so  long  as  the 
statutes  are  identical  in  effect  as  applied  to  intrastate  com- 
merce, the  state  may  inflict  punishment  for  failure  to 
comply  with  its  own  statute,  and  Congress  may  likewise  do 
so  with  reference  to  its  own  statute."® 


§  232.  Common  carrier  and  railroad  defined. — The  stat- 
ute only  applies  to  "any  common  carrier  engaged  in  inter- 
state commerce  by  railroad."  A  common  carrier  has  thus 
been  defined:  "A  common  or  public  carrier  is  one  who  by 
virtue  of  his  business  or  calling  undertakes,  for  compensa- 


for  personal  injuries  to  any  employee 
or  when  such  injuries  have  resulted 
in  his  death  the  fact  that  such  em- 
ployee may  have  been  guilty  of 
contributory  negligence  shall  not 
bar  a  recovery  when  his  contributory 
negligence  was  slight  and  that  of  the 
employer  was  gross  in  comparison, 
but  damages  shall  be  diminished  by 
the  jury  in  proportion  to  the  amount 
of  negligence  attributable  to  such 
employee."  Pacific  Ry.  Co.  v. 
Castle,  172  Fed.  841. 

A  state  statute  regulating  the  speed 
of  railway  trains  at  highway  cross- 
ings is  not  invalid  as  applied  to  inter- 
state trains,  Congress  not  having 
legislated  on  the  subject.  Southern 
Ry.  Co.  V.  King,  217  U.  S.  524; 
30  Sup.  Ct.  594;  54  L.  Ed.  8G8,  affirm- 
ing 100  Fed.  3.32;  87  C.  C.  A.  284. 

'■^^  See  section  243. 

'*  The  Ohio  statute  requires  the 
coupling  to  be  so  constructed  that 
it  will  couple  by  impact.  McGarvey 
V.  Detroit,  T.  &  I.  Ry.  Co.  83  Ohio 
St.  273;  94  X.  E.  424. 

The  Illinois  statute,  almost  iden- 
tical with  the  Federal  .statute,  has 
been  held  constitutional.     Luken   v. 


Lake  Shore  &  M.  S.  Ry.  Co.  248  111. 
377;  94  N.  E.  175. 

The  Texas  statute  is  constitutional. 
Freeman  v.  Swan,  (Tex.  Civ.  App.) 
143  S.  W.  724. 

The  validity  of  the  Nebraska 
statute  (Comp.  Stat.  21,  §§  3  and  4) 
insofar  as  it  imposes  liability  upon  a 
railway  company  for  injury  to  an 
employee  engaged  in  interstate  com- 
merce, arising  from  the  negligence 
of  an  employee,  and  modifying  the  rule 
of  contributory  negligence,  is  not 
affected  because  such  statute  also 
covers  subjects  dealt  with  by  the 
Federal  Safety  Appliance  Acts,  such 
as  acts  of  negligence  of  railway  com- 
panies in  respect  of  their  cars,  road- 
bed, machinery,  etc.  Missouri  Pacific 
Ry.  Co.  V.  Castle,  224  U.  S.  541; 
32  Sup.  Ct.  600;  50  L.  Ed.  875. 

State  legislation  applying  to  inter- 
state cars  is  void.  Cleveland,  C.  C. 
&  St.  L.  Ry.  Co.  V.  Public  Service 
Commission  (Ind.)  108  N.  E.  515; 
Southern  Ry.  Co.  v.  Ry.  Commission, 
2.36  U.  S.  4.39;  35  Sup.  Ct.  304;  54  L. 
Ed.—,  reversing  179  Ind.  23;  100 
N.  E.  337. 


ORIGIN,    OBJECT,    ETC.,    OF    STATUTE.  34.5 

tion,  to  transport  personal  property  from  one  place  to  an- 
other, either  by  land  or  water,  and  deliver  the  same,  for  all 
such  as  may  choose  to  employ  him ;  and  every  one  who 
■undertakes  to  carry  and  deliver,  for  compensation,  the 
goods  of  all  persons  indifferently  is,  as  to  liability,  to  be 
deemed  a  common  carrier."-^  "A  railroad  has  been  defined 
as  a  road  or  way  on  which  iron  rails  are  laid  for  wheels  to 
run  over  for  the  conveyance  of  heavy  loads  and  vehicles.-* 
Such  a  track  is  a  railroad  independently  of  the  use  made 
of  the  track  in  hauling  of  cars  over  it."-'* 


"  Moore    on    Carriers   quoted   by  Shore   &    M.   S.   R.   Co.   v.   United 

Judge   Munger  in   United   States   v.  States,  93  U.  S.  442. 
Ramsey,  197  Fed.  144.  "Railroads"    are    defined     in    the 

-*  Citing   Dinsniore  v.   Racine  M.  Interstate  Commerce  Act.     24  Stat. 

R.  Co.  12  Wis.  G49.  at  L.  379,  as  amended  34  Stat,  at  L. 

2«  United    States    v.    Union    Stock  584. 
Yards  Co.  161  Fed.  919,  citing  Lake 


CHAPTER  XV. 

USE  IN  INTERSTATE  TRAFFIC. 


SECTION 

233.  What  is  interstate  commerce — ■ 

Test. 

234.  What  is  interstate  commerce. 

235.  Illustrations  of  interstate  com- 


SECTION 

commission   of   offense — Use 

of  car. 
251.     Car    not    used    in    interstate 

commerce. 
Interstate  car  in  "connection" 

with  intrastate  car. 
Use  of  car  in  interstate  com- 
merce. 
Temporary  suspension  of  trans- 
portation. 
Permitting   cars  to  be  hauled 

over  its  line. 
Defendant    hauling    cars    over 

another    company's    line    of 

railway. 
Freight    designed    for    another 

state — Not  yet  left  the  first 

state. 
Intrastate     traffic — Narrow 

gauge  railroad  wholly  within 

state. 
Intrastate  railroad  engaged  in 

carrying  interstate  commerce 

articles. 
United  States  against  Geddes 

denied. 
Effect  of  the  case  of  Southern 

Railway    Company    against 

United  States  on  Geddes  and 

Colorado  cases. 
Burden — Reasonable  doubt. 


§233.  What  is  interstate  commerce— Test. — "Importa- 
tion into  one  state  from  another,"  said  Judge  Sanborn,  "is 
the  indispensable  element  in  the  test  of  interstate  commerce. 
Every  part  of  every  transportation  of  articles  of  commerce  in 
a  continuous  passage  from  an  inception  in  one  state  to  a  pre- 
316 


merce. 

252. 

236. 

Interterritorial  commerce — Act 

of  1903. 

253. 

237. 

Use  of  car  forbidden. 

238. 

"Haul,"    "used,"   and   "train" 
defined. 

254. 

239. 

Inhibition  of  statute — Car  em- 
ployed  in   interstate   traffic. 

255. 

240. 

Car  in  use,  what  is. 

256. 

241. 

Empty  car  in  interstate  train. 

242. 

Hauling  or  using  car  not  loaded 

with  interstate  trafiic  in  inter- 

257. 

state  train. 

243. 

Intrastate    car    on    interstate 

railroad. 

258. 

244. 

Transportation    of    articles    of 
interstate   commerce  for   an 

independent     express     com- 

259. 

pany. 

245. 

Distance  defective  car  hauled. 

246. 

Switching  car. 

260. 

247. 

Belt   railroad — Terminal   road. 

248. 

Car  on  spur  track. 

261. 

249. 

Used     in     moving     interstate 
traffic — Sending    car    to    re- 
pair shop — Making  up  train. 

250. 

Hauling   car   not   essential   to 

262. 

USE  IN  INTERSTATE  TRAFFIC.  34-7 

scribed  destination  in  another  is  a  transaction  of  interstate 
commerce.  Goods  so  carried  never  cease  to  be  articles  of  in- 
terstate commerce  from  the  time  they  are  started  upon  their 
passage  in  one  state  until  their  delivery  at  their  destination 
in  the  other  is  completed,  and  they  there  mingle  with  and  be- 
come a  part  of  the  great  mass  of  property  within  the  latter 
state.  Their  transportation  never  ceases  to  be  a  transaction 
of  interstate  commerce  from  its  inception  in  one  state  until 
the  delivery  of  the  goods  at  their  prescribed  destination  in 
the  other,  and  every  one  who  participates  in  it,  who  carries 
the  goods  through  any  part  of  their  continued  passage,  un- 
avoidably engages  in  interstate  commerce."^ 

§  234.  What  is  interstate  commerce.— In  discussing  the 
question  of  interstate  commerce  and  what  it  is,  the  Supreme 
Court  of  the  United  Stat-es  used  the  following  language, 
which  has  been  applied  in  the  construction  of  the  Safety 
Appliance  Act :  "In  this  case  it  is  admitted  that  the  steamer 
was  engaged  in  shipping  and  transporting  down  Grand  river 
goods  destined  and  marked  for  other  states  than  ]\Iichigan, 
and  in  receiving  and  transporting  up  the  river  goods  brought 

1  United  States  v.  Colorado,  etc.,  Rep.  139 ;  Caldwell  v.  North  Caro- 
R.  Co.  157  Fed.  Rep.  321;  citing  lina,  187  U.  S.  622;  23  Sup.  Ct. 
Rhodes  v.  Iowa,  170  U.  S.  412;  Rep.  229;  47  L.  Ed.  336;  reversing 
18  Sup.  Ct.  Rep.  664;  42  L.  Ed.  127  K  C.  521;  37  S.  E.  Rep.  138. 
1088;  reversing  90  Iowa,  496;  58  The  act  approved  March  2,  1903, 
N.  W.  Rep.  887;  21  L.  R.  A.  245;  is  not  unconstitutional,  and  the 
Kelley  v.  Rhoades,  188  U.  S.  1;  Employers' Liability  Cases,  207  U. 
23  Sup.  Ct.  Rep.  259;  47  L.  Ed.  S.  463;  28  Sup.  Ct.  Rep.  143;  52 
359;  reversing  9  Wyo.  352;  87  L.  Ed.  297,  is  not  in  point;  for  the 
Am.  St.  Rep.  959;  63  Pac.  Rep.  statute  then  under  consideration 
935;  Houston,  etc.,  Co.  v.  Ins.  applied  to  the  individuals  or  cor- 
Co.  89  Tex.  1;  32  S.  W.  Rep.  porations  engaged  in  interstate 
889;  30  L.  R.  A.  713;  53  Am.  St.  commerce,  whereas  the  Automatic- 
Rep.  17;  Leisy  v.  Hardin,  135  Safety  Appliance  Act  is  addressed 
U.  S.  100;  10  Sup.  Ct.  Rep.  681;  alone  to  an  instrument  of  inter- 
34  L.  Ed.  128;  reversing  78  Iowa,  state  commerce,  viz.,  an  interstate 
286-  43  N  W  188;  Lyng  v.  railroad.  United  States  v.  South- 
Michigan,  135  U."s.  161;  10  Sup.  em  Ry.  Co  164  Jed  Rep  347; 
Ct.  R^p.  725;  34  L.  Ed.  150;  re-  affirmed,  222  U.  S.  20;  32  Sup. 
versing   74   Mich.   579:    42   N.   W.  ^-  ^■'  ^^  ^  ^^' 


348  FEDERAL    SAFETY   APPLIANCE  ACT. 

withiu  the  state  from  without  its  limits;  but  inasmuch  as  her 
agency  in  the  transportation  was  entirely  within  the  limits 
of  the  state,  and  she  did  not  run  in  connection  with,  or  in 
continuation  of,  any  line  of  vessels  or  railway  leading  to 
other  states,  it  is  contended  that  she  was  engaged  entirely  in 
domestic  commerce.  But  this  conclusion  does  not  follow.  So 
far  as  she  was  employed  in  transporting  goods  destined  for 
other  states,  or  goods  brought  from  without  the  limits  of 
Michigan  and  destined  to  places  within  that  state,  she  was 
engaged  in  commerce  between  the  states,  and  however  limited 
that  commerce  may  have  been,  she  w^as,  so  far  as  it  went,  sub- 
ject to  the  legislation  of  Congress.  She  was  employed  as  an 
instrument  of  that  commerce,  for  whenever  a  commodity  has 
begun  to  move  as  an  article  of  trade  from  one  state  to  an- 
other, commerce  in  that  commodity  between  the  states  has 
commenced.  The  fact  that  several  different  and  independent 
agencies  are  employed  in  transporting  the  commodity,  some 
acting  entirely  in  one  state,  and  some  acting  through  two  or 
more  states,  does  in  no  respect  affect  the  character  of  the 
transaction.  To  the  extent  in  which  each  agency  acts  in  that 
transportation,  it  is  subject  to  the  regulation  of  Congress. 
It  is  said  that  if  the  position  here  asserted  be  sustained,  there 
is  no  such  thing  as  the  domestic  trade  of  a  state ;  that  Con- 
gress may  take  the  entire  control  of  the  commerce  of  the 
country,  and  extend  its  regulations  to  the  railroads  within  a 
state  on  which  grain  or  fruit  is  transported  to  a  distant 
market.  We  answer  that  the  present  case  relates  to  trans- 
portation on  the  navigable  waters  of  the  United  States,  and 
we  are  not  called  upon  to  express  an  opinion  upon  the  power 
of  Congress  over  interstate  commerce  when  carried  on  by  land 
transportation.  And  we  answer  further,  that  we  are  unable 
to  draw  any  clear  and  distinct  line  between  the  authority  of 
Congress  to  regulate  an  agency  employed  in  commerce  be- 
tween the  states,  when  that  agency  extends  through  two  or 
more  states,  and  when  it  is  confined  in  its  action  entirely 
within  the  limits  of  a  single  state.  If  its  authority  does  not 
extend  to  an  agency  in  such  commerce,  when  that  agency  is 
confined  within  the  limits  of  a  state,  its  entire  authority  over 


USE   IN   INTERSTATE  TRAFFIC. 


349 


interstate  commerce  may  be  defeated.  Several  agencies  com- 
bining, each  taking  up  the  commodity  transported  at  the 
boundary  line  at  one  end  of  a  state,  and  leaving  it  at  the 
boundary  line  at  the  other  end,  the  Federal  jurisdiction 
would  be  entirely  ousted,  and  the  constitutional  provision 
would  become  a  dead  letter.  "- 

§  235.  Illustrations  of  interstate  commerce. — ' '  By  inter- 
state commerce  is  meant  traffic  that  is  moved  from  one 
state  or  territory  into  or  through  some  other  state  or  terri- 
tory."^ Transportation  from  one  state  through  another  to 
a  Canadian  province  is  interstate  commerce  ;*  so  is  traffic 
hauled  from  one  point  in  a  state  to  another  point  in  the 
same  state,  passing  en  route  through  a  portion  of  another 
state.^  The  interstate  character  of  a  shipment  attaches 
Avhen  it  begins  to  move  as  an  article  of  interstate  commerce, 
and  continues  until  its  ultimate  destination  is  reached.® 
Stoppage  in  a  car  yard  is  a  mere  incident  of  the  transpor- 


2  The  Daniel  Ball,  10  Wall.  557, 
19  L.  Ed.  999,  reversing  Brown, 
Admr.  Cas.  193;  Fed.  Cas.  No.  3564, 
used  in  United  States  v.  Colorado, 
etc.,  Ry.  Co.  157  Fed.  Rep.  321; 
Elgin,  etc.,  R.  Co.  v.  United  States, 
168  Fed.  Rep.  1;  United  States  v. 
Great  Western  Ry.  Co.  162  Fed.  775; 
United  States  v.  Central  of  Georgia, 
157  Fed.  893;  Northern  Pacific  Ry. 
Co.  V.  State,  222  U.  S.  370;  32  Sup. 
Ct.  160;  56  L.  Ed.  237. 

A  car  billed  on  defendant's  line 
of  railroad  in  Illinois  to  a  destina- 
tion in  Missouri  is  a  car  used  in  mov- 
ing interstate  traffic,  although  the 
defendant  does  not  haul  the  car  from 
one  state  to  another.  United  States 
V.  Southern  Ry.  Co.  135  Fed.  Rep. 
122. 

No  system  can  be  devised  to  turn 
interstate  commerce  into  intrastate 
commerce.  United  States  v.  Chicago, 
etc.,  R.  Co.  149  Fed.  Rep.  486. 

Where  a  car  is  loaded  in  one  state 
with  a  commodity  destined  for  an- 
other state,  and  begins  to  move, 
then  interstate  commerce  has  begun 
and  does  not  cease  until  the  car  has 
arrived   at   its   point   of   final   desti- 


nation. United  States  v.  Atlantic 
Coast  Line  R.  Co.  168  Fed.  Rep. 
175  (decided  February  24,  1909); 
Appendix  G,  p.  372;  St.  Louis  & 
S.  F.  R.  Co.  V.  Delk,  158  Fed.  931; 
United  States  v.  Erie  R.  Co.  166 
Fed.  352;  Hanley  v.  Kansas  City  So. 
Ry.  Co.  187  Fed.  617;  Belt  Ry.  Co.  v. 
United  States,  168  Fed.  542;  Chicago, 
]M.  &  St.  P.  Ry.  Co.  V.  Voelker,  129 
Fed.  522;  Pacific  Coast  Ry.  Co.  v. 
United  States,  173  Fed.  448;  United 
States  V.  Central  of  Georgia,  157 
Fed.  893;  Erie  R.  Co.  v.  Russell, 
183  Fed.  722. 

^  United  States  v.  Chicago  Great 
Western  Ry.  Co.  162  Fed.  775; 
Wabash  R.  Co.  v.  United  States. 
168  Fed.  1;  United  States  v.  Central 
of  Georgia  Ry.  Co.  157  Fed.  893; 
United  States  v.  Colorado  «fe  N.  W. 
R.  Co.  157  Fed.  321. 

^  Northern  Pacific  Ry.  Co.  v.  State, 
222  U.  S.  370;  32  Sup.  Ct.  160;  56 
L.  Ed.  237. 

5  United  States  v.  Erie  R.  Co.  166 
Fed.  352. 

6  United  States  v.  Geddes,  131  Fed. 
452. 


350  FEDERAL  SAFETY  APPLIANCE  ACT. 

tation  in  interstate  commerce  J  "When  a  commodity  orig- 
inating in  one  state  and  destined  to  a  point  in  another 
state  is  put  aboard  a  car,  and  that  car  begins  to  move,  inter- 
state commerce  has  begun,  and  that  interstate  commerce  it 
continues  to  be  until  it  reaches  its  destination,"^  "Whether 
the  ultimate  destination  was  near  by  or  remote  is  not  ma- 
terial.^ If  started  in  movement  it  is  interstate  commerce, 
although  it  has  not  yet  left  the  state  of  the  origin  of  such 
movement.^"  Temporary  stoppage  of  a  car,  even  for  re- 
pairs, does  not  withdraw  it  from  the  use  of  interstate  com- 
merce.^^  Employees  on  work  trains,  engaged  in  picking  up 
logs  along  the  right  of  way  for  interstate  shipment,  are  en- 
gaged in  interstate  commeree.^^  A  car  moved  for  the  pur- 
pose of  being  laden  with  an  interstate  shipment  is  used  in 
such  commerce.^^  And  in  the  absence  of  evidence  to  the 
contrary,  the  fact  that  a  car  was  subsequently  hauled  by  a 
carrier  to  an  interstate  destination  is  properly  to  be  con- 
sidered by  the  jury  in  determining  its  intended  destination 
at  the  time  it  was  moved  for  lading.^*  The  weighing  of  cars 
to  determine  the  weight  of  their  interstate  contents  is  inter- 
state commerce.^^  The  transportation  by  a  railroad  com- 
pany of  interstate  shipments  for  an  independent  express 


^  St.  Louis  &  S.  F.  R.  Co.  v.  Delk,  v.  Zachary,  232  U.  S.  248;  34  Sup. 

158  Fed.  931.  Ct.  305;  58  L.  Ed.  591. 

8  Belt  Ry.  Co.  v.  United  States,  "  Erie  R.  Co.  v.  Russell,  183  Fed. 
168  Fed.  542.  726.     But  see  Siegel   v.   New  York 

9  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Central  &  H.  R.  R.  Co.  178  Fed.  873. 
Voelker,  129  Fed.  522;  United  States  '=  United  States  v.  Chicago,  M. 
V.   Central  of  Georgia   Ry.   Co.   157  &  P.  S.  Ry.  Co.  197  Fed.  624. 

Fed.  893.  "Chicago   &   N.   W.   Ry.   Co.  v. 

•"  United     States     v.     Central     of  United  States,  168  Fed.  236;  Bresky 

Georgia    Ry.     Co.     157     Fed.     893;  v.    Minneapolis   &    St.    L.    Ry.    Co. 

Pacific    Coast    Ry.    Co.    v.    United  115  Minn.  386;  132  N.  W.  337. 

States,  173  Fed.  448;  United  States  '^  Bresky  v.  Minneapolis  &  St.  L. 

V.  Colorado  &  N.  W.  R.  Co.  157  Fed.  Ry.  Co.  115  Minn.  386;  132  N.  W. 

321;  United  States  v.  Western  &  A.  337. 

R.  Co.  184  Fed.  336;  United  States  V.  '^  Wheeling   Terminal   Ry.   Co.   v. 

Chicago,  M.  &  P.  S.  Ry.  Co.  197  Fed.  Russell,  209  Fed.  795;  126  C.  C.  A. 

021;  Felt  v.  Denver  &  K.  G.  R.  Co.  519. 
110  Pac.  215;  North  Carolina  R.  Co. 


USE  IN  INTERSTATE  TRAFFIC.  35^ 

company  is  interstate  commerce.^"  The  transportation  by 
an  interstate  carrier  of  its  own  products  or  property  is  in- 
terstate commerce.^^  Mere  rebilling  a  shipment  does  not 
affect  its  interstate  character/*^  but  a  diverting  order 
changes,  ah  initio,  the  destination  of  a  shipment/"  The 
relation  between  interstate  and  intrastate  commerce  is  so 
intimate,  and  their  functions  so  commingled,  that  conditions 
injuriously  affecting  the  latter  may  jeopardize  the  former.^" 

§  236.    Interterritorial     commerce — Act     of     1903. — The 

interterritorial  couimerce  designated  in  the  Act  of  1903  is 
equivalent  to  the  interstate  commerce  under  the  Act  of  1893. 
In  an  action  for  a  violation  of  the  statute  in  a  territory  the 
complaint  will  not  be  defective  for  a  failure  to  allege  that 
the  defendant  is  a  common  carrier  engaged  in  interstate 
commerce,  if  it  alleges  that  the  defendant  is  a  common  car- 
rier engaged  in  commerce  by  railroad  among  the  several 
territories  of  the  United  States,  particularly  the  territories 
of  Arizona  and  New  Mexico.^ 

§  237.  Use  of  car  forbidden. — In  the  first  section  of  the 
statute  it  is  declared  that  *'it  shall  be  unlawful  for  any  com- 
mon carrier  engaged  in  interstate  commerce  by  railroad  to 
use  on  its  line  any  locomotive  engine"  not  equipped  with 
a  driving-wheel  brake ;  and  in  the  sixth  section,  as  amended 
in  1896,  it  is  provided,  "That  any  such  common  carrier 
using  any  locomotive  engine,  running  any  train,  or  hauling 
or  permitting  to  be  hauled  or  used  on  its  line  any  car  in 

>«  United  States  v.  Colorado  &  N.  ^o  Southern    Ry.    Co.    v.    United 

W.  R.  Co.  157  Fed.  342.  States,  222  U.  S.  20;  32  Sup.  Ct.  2; 

"United    States    v.    Chicago,    M.  56   L.   Ed.   72;   Wabash   R.   Co.   v. 

&    St.    P.    Ry.    Co.    149    Fed.    486;  United   States,    168   Fed.    1;   United 

Johnson  v.  Chicago  G.  W.  Ry.  Co.  States   v.   Great   Northern   Ry.   Co. 

164   S.   W.   260;   Barker   v.   Kansas  145  Fed.  438;  State  v.  Chicago,  M. 

City,  M.  &  O.  Ry.  Co.  88  Kan.  767;  &  St.  P.  Ry.  Co.  136  Wis.  407;  117 

129    Pac.    1151;    United    States    v.  N.  W.  686;  United  States  v.  Erie  R. 

Chicago  &  N.  W.  Ry.  Co.  157  Fed.  Co.   35   Sup.  Ct.  621,  reversing  212 

616.  Fed.  853;  129  C.  C.  A.  307. 

**  United  States  v.  Colorado  &  N.  '  United   States   v.   El   Paso,   etc., 

W.  R.  Co.  157  Fed.  321.  R.  Co.  Appendix  G. 

"  United  States  v.  Pacific  Coast  Ry. 
Co.  173  Fed.  453. 


352  FEDERAL   SAFETY   APPLIANCE   ACT. 

violation  of  the  provisions"  of  the  act  shall  be  liable  to  a 
penalt}^  Section  second  provides  that  "it  shall  be  unlaw- 
ful for  any  such  common  carrier  to  haul  or  permit  to  be 
hauled  or  used  on  its  line  any  car  used  in  moving  inter- 
state traffic  not  equipped  with  couplers  coupling  auto- 
matically by  impact,  and  which  can  be  uncoupled  without 
the  necessity  of  men  going  between  the  ends  of  the  cars." 
By  reason  of  the  language  of  this  statute  it  is  clear  that  it 
is  only  the  use  of  insufficiently  equipped  cars  that  is  for- 
bidden ;  and,  of  course,  the  hauling  of  the  car  is  a  use.  The 
ownership  of  the  car  is  immaterial.*  It  is  not  the  mere  fact 
of  the  ownership  of  a  car,  defectively,  or  not  at  all,  equipped 
even  though  there  be  an  intent  to  use  or  haul  it,  that  con- 
stitutes the  offense  against  the  statute ;  but  the  offense  against 
or  violation  of  the  statute  is  its  actual  use  or  hauling 
it.  "The  act  of  1893  makes  it  unlawful  for  a  company  to 
do  certain  things:  First,  to  haul  the  car.  Second,  to  per- 
mit the  car  to  be  hauled.  Third,  to  use  or  permit  a  car  to 
be  used.  All  three  of  these  prohibitions  are  with  reference 
to  cars  on  the  lines  of  the  company  within  this  judicial  dis- 
trict. And  the  prohibitions  are  with  reference  to  cars  used 
only  in  interstate  traffic  and  which  are  not  equipped  with 
couplers  coupling  automatically  by  impact  and  which  cars 
can  be  coupled  without  the  necessity  of  men  going  between 
the  ends  of  the  cars. "  °  It  is  immaterial  what  is  the  pur- 
pose of  the  movement  of  the  car  nor  the  distance  it  is  hauled, 
nor  whose  car  it  is.  If  the  car  is  defective  the  railroad 
company  is  liable." 

*  Crawford    v.    New    York,    etc.,  G;  United  States  v.  Southern  Pacific 

R.  Co.  10  Am.  &  Eng.  R.  Cas.  166;  Co.  169  Fed.  407. 
United   States   v.   Chicago,   etc.,    R.  « United  States  v.  Erie  R.  Co.  35 

Co.  143  Fed.  Rep.  353;  United  States  Sup.     Ct.     621;     United     States    v. 

V.  Chicago,  etc.,   Ry.   Co.   149  Fed.  Northern  Pac.  T.  Co.  144  Fed.  Rep. 

Rep.  486;  Philadelphia  &  Ry.  Co.  v.  861;  United  States  v.  Chicago,  etc., 

United  States,  191  Fed.  1;  111  C.  C.  R.   Co.    143   Fed.   Rep.   353;   United 

A.  661;  Gray  v.  Louisville  &  N.  R.  States  v.  Southern  Ry.  Co.  105  Fed. 

Co.  197  Fed.  874.  Rep.    122;   Crawford   v.   New   York, 

"*  United    States   v.    Chicago,   etc.,  etc.,  R.  Co.  10  Am.  &  Eng.  R.  Cas. 

Ry.  Co.  149  Fed.  Rep.  486;  United  166.    If  the  car  is  one  that  is  regularly 

States  V.  Northern  Pac.  T.  Co.  144  used  in  the  movement  of  interstate 

Fed.  Rep.  861;  Elgin,  etc.,  R.  Co.  v.  traffic,  and  is  at  the  time  involved  in 

United    States,    168    Fed.    Rep.    1;  the  movement  of  a  train  containing 

Chicago,  etc.,  R.  Co.  v.  United  States,  interstate  traffic,  the  lading  of  the  car 

168  Fed.  Rop.  236;  United  States  v.  is  wholly  immaterial.     United  States 

iSouthern  Pacific  Ry.  Co.,  Appendix  v.    Wheeling    (see    Appendix  G). 


USK  IN  INTERSTATE  TRAFFIC.  353 

§  238.  ' '  Haul, "  "  used  "  and  "  train ' '  defined.— To  ' '  haul ' ' 
means  (1)  to  "drag  with  force  or  violence,  to  pull,  to  draw, 
to  tug,  to  drag;  (2)  to  carry  or  convey  in  a  cart  or  other 
vehicle/  The  word  "haul"  as  used  in  the  statute  is  not 
limited  to  the  second  part  of  the  definition  quoted ;  for  "such 
a  construction  would  so  far  negative  the  purpose  of  the  act 
in  question  as  to  well  nigh  render  it  of  no  practical  use."* 
The  term  "used"  means  "employed  for  a  purpose,"  and 
imports  a  certain  degree  of  permanence."  It  is  of  broader 
significance  than  the  word  "hauled."  "The  statute  forbids 
hauling  and  using,  "Why  were  both  words  used?  If  the 
car  was  fully  loaded  and  on  the  track  ready  to  be  started 
as  a  part  of  an  interstate  train,  with  engine  attached  and 
fired,  and  requiring  only  the  touch  of  the  engineer  to  start, 
would  not  the  car  be  'used'  or  in  use,  within  the  statute, 
before  it  was  hauled?  If  it  was  without  the  automatic 
coupler,  so  that  the  brakeman  would  have  to  go  between 
the  cars  to  couple  them,  it  clearly  would  be  within  the  mis- 
chief the  statute  was  intended  to  prevent.  'Used'  has  other 
meanings  than  'hauled.'  It  is  a  broader  word."^°  A  "train" 
is  one  aggregation  of  cars  drawn  by  the  same  engine ;  but 
if  the  engine  is  changed  there  is  a  different  train."  Yet  if 
the  engine  and  crew  (and  even  the  caboose)  be  changed 
and  another  engine  and  crew  (and  caboose)  be  substituted 
it  is  still  a  "train. "^-  The  word  "train"  as  used  in  the 
Safety  Appliance  Act  is  used  in  the  ordinary  and  not  the 
technical  sense  of  the  word  regardless  of  the  varying  rules 
and  practices  of  carriers.^^  Speaking  of  the  statute,  the 
Supreme  Court  has  said:  "As  the  context  shows,  a  train 
in  the  sense  intended  consists  of  an  engine  and  cars  which 
have  been  assembled  and  coupled  together  for  a  run  or  trip 
along  the  road.  Where  a  train  is  thus  made  up  and  is  pro- 
ceeding on  its  journey  it  is  within  the  operation  of  the  air- 
brake provision."^* 

'  Worcester's  Dictionary.  La   Mere  v.   Ey.   Transfer  Co.    125 

8  United  States  v.  St.  Louis,  I.  M.  Minn.  526;  145  "N.  W.  1068;  Chicago, 

&  S.  Ry.  Co.  154  Fed.  516.  B.   &   Q.   R.   Co.   v.   United   States, 

8  United   States   v.   Spokane   &   I.  211    Fed.    12;    127    C.    C.    A.    438; 

E.  R.  Co.  206  Fed.  988.  United  States  v.  Erie  R.  Co.  35  Sup. 

1"  United  States  v.  St.  Louis  S.  W.  Ct.  621;  212  Fed.  853;  129  C.  C.  A. 

Ry.  Co.  184  Fed.  28.  307.      See    Detroit    St.    Ry.    Co.    v. 

11  United  States  v.  Boston  &  M.  Mills,  85  Mich.  634;  48  N.  W.  1007; 

R.  Co.  168  Fed.  148;  United  States  Dacey   v.    Old    Colony   R.    Co.    153 

V.  Chicago,  B.  &  Q.  R.  Co.  35  Sup.  Mass.  112;  26  N.  E.  437,  and  Carson 

Ct.  634,  affirming  211  Fed.  12;  127  v.   Boston  &  A.   R.   Co.   164  Mass. 

C.  C.  A.  438.  523;  42  N.  E.  112. 

1=  United  States  v.  Chicago  G.  W.  '*  United  States  v.  Erie  R.  Co.  35 

Ry.  Co.  162  Fed.  775.  Sup.  Ct.  621,  reversing  212  Fed.  853; 

I'llnited  States  v.  Grand  Trunk,  129  C.  C.  A.  307,  and  reversal  on 

203  Fed.  775;  United  States  v.  Pere  first  appeal,  197  Fed.  287;  116  C.  C. 

Marquette    R.    Co.    211    Fed.    220;  A.  649,  section  303a. 


354 


FEDERAL  SAFETY  APPLIANCE  ACT. 


§  239.  Inhibition  of  statute — Car  employed  in  interstate 
traffic. — ''The  statute  was  designed  to  inhibit  the  hauling 
or  using  by  any  railroad  company  in  its  line  any  car  used 
in  moving  interstate  traffic  not  equipped  with  couplers 
coupling  automatically  by  impact,  etc.,  the  denouncement 
being  against  the  use  of  the  car.  It  makes  but  little  differ- 
ence, therefore,  whether  the  car  contained  at  the  time  any 
commodity  being  carried  as  freight  or  not,  if  the  car  was  one 
being  used  in  moving  interstate  traffic,  not  in  the  sense  that 
at  the  particular  time  it  was  going,  loaded  or  partially  so 
with  a  commodity  being  shipped  from  one  state  into  another 
or  others,  but  that  it  w^as  being  employed  in  a  service  that 
was  moving  interstate  traffic. "  ^  A  car  loaded  with  coal, 
to  be  delivered  to  a  consignee  in  another  state,  is  used  "in 
moving  interstate  traffic,"  if  hauled  by  a  railroad  company 
in  taking  it  from  the  place  of  loading,  although  such  com- 


^  United  States  v.  Northern,  etc., 
Ry.  Co.  144  Fed.  Rep.  861.  In  this 
case  the  court  adds:  "Such  is  the 
construction  given  the  law  by  Shiras, 
district  judge  in  Voelker  v.  Chicago, 
etc.,  Ry.  Co.  116  Fed.  Rep.  867,  and 
affirmed  by  Mr.  Chief  Justice  Fuller 
in  Johnson  v.  Southern  Pac.  Co.  196 
U.  S.  1;  25  Sup.  Ct.  Rep.  158;  49  L. 
Ed.  363,  reversing  54  C.  C.  A.  508; 
117  Fed.  Rep.  462;"  United  States  v. 
Colorado  &  N.  W.  R.  Co.  157  Fed. 
321;  85  C.  C.  A.  27;  United  States 
V.  Union  Stock  Yards  Co.  161  Fed. 
919;  Devine  v.  Chicago  &  C.  R.  Co. 
266  111.  248;  102  N.  E.  803;  United 
States  V.  International  &  G.  N.  R. 
Co.  174  Fed.  638;  Chicago,  M.  &  St. 
P.  Ry.  Co.  165  Fed.  423;  Southern 
Ry.  Co.  V.  Snyder,  187  Fed.  492; 
United  States  v.  Western  &  A.  R. 
Co.  184  Fed.  336;  Erie  R.  Co.  v. 
Russell,  183  Fed.  722;  Hohnleiter  v. 
Southern  Pacific  Co.  177  Fed.  796; 
Norfolk  &  W.  Ry.  Co.  v.  United 
States,  177  Fed.  623;  United  States 
V.  Baltimore  &  Ohio  R.  Co.  170  Fed. 
456;  United  States  v.  WheeUng  & 
L.  E.  R.  Co.  167  Fed.  198.  "The 
words  'used  in  moving  interstate 
traffic'  should  not  be  taken  in  a 
narrow  sense."  Schlemmor  v.  Buff- 
alo, etc.,  R.  Co.  205  U.  S.  1;  27  Sup. 
Ct.  Rep.  407;  51  L.  Ed.  6S1,  reversing 
207  Pa.  St.  19H;  .56  .Ml.  Rep.  417; 
United  States  v.  Chicago,  etc.,  Ry. 
Co.  143  Fed.  Rep.  373. 


"The  railway  locomotive,  train, 
or  car,  or  the  car  as  a  constituent 
of  the  train,  ihat  goes  from  State 
to  State  carrying  wholly,  or  in 
part,  any  interstate  commerce  are 
for  the  time  being  instrumentali- 
ties of  interstate  commerce;  as 
also  the  locomotive  train,  or  car 
that,  though  not  going  out  of  the 
State,  carries  on  its  way  through 
the  State  traffic  that  is  interstate 
transit;  and  the  obverse  of  that 
would  seem  to  be  that  a  train  trav- 
eling wholly  b.2tween  points  in  the 
same  State,  and  not  going  out  of 
the  State,  and  carrying  wholly 
commerce  originating  in  the  State, 
destined  to  points  in  the  same 
State,  is  not  for  the  time  being  an 
instrument  of  interstate  com- 
merce." Elgin,  etc.,  R.  Co.  v.  United 
States,  168  Fed.  Rep.  1;  Wabash, 
etc.,  R.  Co.  V.  United  States,  168 
Fed.  Rep.  1.  But  see  now  the 
interpretation  placed  upon  this 
statutt!  by  the  Supreme  Court  of 
the  United   States,   Sec.   159. 


USE  IN  INTERSTATE  TRAPPIC. 


355 


pan,y  only  undertakes  to  deliver  it  to  a  connecting  carrier 
within  the  same  state. ^  And  this  is  true,  although  it  only 
hauls  it  through  its  own  yards."  A  railroad  company  haul- 
ing its  own  rails  from  one  state  to  another,  to  be  there  used 
by  it,  is  engaged  in  interstate  commerce.^  °  But  it  has  been 
held  that  coal  mined  in  Kentucky  and  there  loaded,  and 
then  billed  and  shipped  to  another  place  in  the  same  state, 
is  not  turned  into  interstate  commerce  by  the  fact  that  in 
its  route  it  passed  through  a  part  of  another  state.^^ 


8  United  (States  v.  Sou/thern  E.y. 
Cb.    135  Fed.   Rep.    122. 

9  United  States  v.  Pittsburg, 
etc.,  R.  Co.  143  Fed.  Rep.  360; 
contra,  McCutcheon  v.  Atlantic, 
etc.,  R.  Co.  81  S.  C.  71;  61  S.  E. 
Rep.  1108.  But  hauling  empty 
intrastate  cars  in  an  interstate 
train  is  within  the  statute,  Elgin, 
etc.,  R.  Co.  V.  United  States,  168 
Fed.   Rep.   1. 

10  United  States  v.  Chicago,  etc., 
R.  Co.  149  Fed.  Rep.  486 ;  affirmed, 
165    Fed.    423;    91    C.    C.   A.    373. 

So  it  is  a  violation  of  the  stat- 
ute for  a  company  to  haul  sand 
for  itself  in  improperly  equipped 
cars  from  one  sitate  to  another. 
United  States  v.  Southern  R.  Co. 
167   Fed.   198;   Appendix  G. 

11  Louisville,  etc.,  R.  Co.  v.  Van- 
cleave,  23  Ky.  L.  Rep.  479;  63  S. 
W.  Rep.  22;  Louisville,  etc.,  3,. 
Co.  V.  Walker,  23  Ky.  L.  Rep. 
453;  63  S.  W.  Rep.  20.  See  Com- 
monwealth V.  Lehigh  Valley  R. 
Co.  (Pa.);  17  Atl.  179;  Lehigh 
Valley  R.  Co.  v.  Commonwealth, 
(Pa.):      18     Atl.     125;      Chicago, 

M.  &  St.  P.  R.  Co.  V.  Minnesota, 
134  U.  S.  418;  10  Sup  Ct.  462, 
702;  33  L.  Ed.  970;  Lehigh  Valley 
R.  Co.  V.  Pennsylvania,  145  U.  iS. 
192;  12  Sup.  Ct.  806;  36  L.  Ed. 
672;  Cincinnati  Packet  Co.  v.  Bay, 


200  U.  S.  179;  26  Sup.  Ct.  208; 
50  L.  Ed.  428;  United  States  v. 
Lediigh  Valley  R.  Co.  115  Fed. 
373;  Campbell  v.  Chicago,  etc.,  R. 
Co.  86  Iowa.  641;  53  X.  W.  323; 
Seawell  v.  Kansas  City,  etc.,  R. 
Co.  119  Mo.  222;  24  S.  W.  1002. 
But  the  United  States  Court  held 
it  is  interstate  commerce.  United 
States  V.  Erie  R.  Co.  163  Fed.  Rep. 
352.  See  Hanley  v.  Kansas  City  So. 
Ry.  Co.  187  U.  S.  618;  23  Sup.  Ct. 
Rep.  ai4;  47  L.  Ed.  33;  affirming 
106  Fed.  Rep.  353;  Sternberg  v. 
Cape  Fear  &  Y.  V.  R.  Co.  (N.  C.) 
7  S.  E.  836:  State  v.  Chicago, 
St.  P.,  M.  &  0.  R.  Co.  40  Minn. 
267;  41  K  W.  1047;  New  Orleai  s 
Cotton  Exchange  v.  Cincinnati, 
etc.,  R.  Co.  2  Interstate  Com.  Rep. 
289;  Kansas  C.  S.  Ry.  Co.  v.  R.  R. 
Commission,  106  Fed.  359;  United 
States  V.  Erie  R.  Co.  166  Fed.  352; 
Shelby,  etc.,  Co.  v.  Southern  Ry. 
Co.  147  N.  C.  66;  60  S.  E.  721; 
Davis  V.  Southern  Ry.  Co.  147 
X.  C.  68;  60  S.  E.  722;  St.  Louis 
&  S-.  F.  Ry.  Co.  V.  State,  87  Ai-k. 
562;  113  S.  W.  203;  IVIires  v. 
St.  Louis  &  S.  F.  Ry.  Co.  134  ]Mo. 
App.  379;  114  S.  W.  1052.  Ca^es 
cited  in  this  section  must  now  be 
read  in  the  light  of  the  recent  de- 
cisions of  the  United  States  Su- 
preme Court.     See  Sec.  243. 


356 


FEDERAL   SAFETY   APPLIANCE    ACT, 


§  240.  Car  in  use,  what  is— A  loaded  car  from  another 
state,  not  yet  delivered  to  the  consignee  at  the  time  of  its 
stoppage  in  a  railroad  yard  at  its  destination  and  shunted 
on  a  side  track  for  repairs  to  its  coupler  which  had  become 
defective,  is  still  a  car  used  in  interstate  commerce.  "Its 
stoppage  in  the  yard  was  an  incident  to  the  transportation. 
The  injury  to  the  coupler  was  one  easily  repaired  without 
being  taken  to  a  repair  shop,  and  the  car  was  being  hauled 
upon  the  track  when  the  accident  occurred. "  ^^  It  is  the 
use  of  the  ear  that  is  the  test.^-^ 

§  241.  Empty  car  in  interstate  train.  The  statute  does 
not  state  whether  it  applies  to  loaded  or  unloaded  cars,  and 
it  therefore  applies  to  a  defective  empty  car  hauled  in  an 
interstate  train. ^-*  "Here  is  a  train  which  is  engaged — at 
least  a  part  cf  it — in  interstate  commerce,  and  so  long  as 
that  is  true  every  car  in  the  train  is  impressed,  so  far  as 


12  St.  Louis,  etc.,  R.  Co.  v.  Delk, 
158  Fed.  Rep.  9i31;  citing  John- 
son V.  Southern  Pacific  Co.  196 
U.  S.  1;  25  Sup.  Ct.  Rep.  158;  49 
L.  Ed.  363;  reversing  54  C.  C.  A. 
508;  117  Fed.  Rep.  462;  Chicago, 
etc.  R.  Co.  V.  Voelker,  129  Fed. 
Rep.  522;  65  C,  C.  A.  226;  70 
L.  R.  A.  264. 

In  order  to  constitute  a  viola- 
tion of  the  (Safety  Appliance  Act, 
the  car  must  be  moved  in  a  defec- 
tive condition.  United  Slates  v. 
Lehigh  Valley  R.  Co.  162  Fed.  Rep. 
410  (see  160  Fed.  696,  Appen- 
dix G)  ;  United  States  v.  Phila- 
delphia, etc.,  R.  Co.  162  Fed.  Rep. 
405  (see  Appendix  G,  p.  315)  ; 
United  States  v.  Pennsylvania  R. 
Co.  162  Fed.  Rep.  408  (see  Appen- 
dix G)  ;  United  States  v.  Philadel- 
phia, etc.,  R.  Co.  160  Fed.  Rep. 
696;    162  Fed.  Rep.  403. 

Judge  Lurton  dissented,  distin- 
guishing the  case  from  the  Johnson 
case,   and    Railway   v.    Powles,    71 


Miss.  1003;  15  So.  Rep.  138,  and 
Taylor  v.  Boston  Ry.  189  Mass. 
390;  74  N.  E.  Rep.  591,  arising 
under  similar  state  statutes. 

12a  United  States  v.  Southern 
Pacific  Ry.  Co.  167  Fed.  699;  United 
States  V.  Spokane  &  E.  R.  Co.  206 
Fed.  988;  Winkler  v.  Philadelphia 
&  R.  Ry.  Co.  4  Penn.  (Del.)  90;  53 
Atl.  90. 

'2»  See  section  264;  Norfolk  &  W. 
Ry.  Co.  v.  United  States,  177  Fed. 
623;  Hohenleitner  v.  Southern  Pacific 
Co.  177  Fed.  796;  Chicago  &  N.  W. 
Ry.  Co.  V.  United  States,  168  Fed. 
238;  Southern  Ry.  Co.  v.  Snyder,  187 
Fed.  497;  United  States  v.  Louisville 
&  N.  R.  Co.  162  Fed.  185.  (Such  is 
the  Illinois  statute.  Luken  v.  Lake 
Shore  &  M.  Ry.  Co.  248  111.  377;  94 
N.  E.  175.)  United  States  v.  Chicago 
&  N.  W.  Ry.  Co.  157  Fed.  616, 
reversed  168  Fed.  236;  Kelly  v. 
Great  Northern,  152  Fed.  211;  Snead 
v.  Central  of  Georgia,  151  Fed. 
608;  Louisville  &  N.  R.  Co.  v.  United 
States,  174  Fed.  1021;  98  C.  C.  A. 
664;  Elgin,  etc.,  11.  Co.  v.  United 
States,  168  Fed.  1. 


USE   IN    INTERSTxlTE   TRAPPIC.  357 

the  requirements  of  this  act  are  concerned,  with  an  inter- 
state character.  It  is  a  part  of  the  current.  The  empty  car 
may  at  any  moment  be  coupled  to  the  interstate  car.  A 
brakeman  engaged  in  performing  some  duty  in  respect  to 
the  interstate  car  may  be  compelled  to  pass  over  or  use  a 
grab-iron  on  the  empty  car  or  couple  the  empty  car  to  the 
interstate  car.  Endless  confusion  would  arise  if  any  dis- 
tinction was  made  under  such  conditions  between  a  car 
loaded  with  interstate  traffic  and  an  empty  car  regularly 
used  in  the  movement  of  interstate  traffic,  but  at  the  time 
unloaded  and  coupled  to  another  car  actually  in  use  in  the 
movement  of  interstate  traffic.  Of  course,  the  same  thing 
must  be  said  of  the  loaded  car,  whatever  the  character  of 
the  freight  it  carries,  if  it  is  a  car  regularly  used  in  the 
movements  of  interstate  traffic. "^^^^  "It  is  enacted  that  'no 
cars,  either  loaded  or  unloaded,  shall  be  used  in  interstate 
traffic  which  do  not  comply  with  the  standard.'  There  is 
no  escape  from  the  meaning  of  these  words.  Explanation 
cannot  clarify  them,  and  ought  not  to  be  employed  to  con- 
fuse them  or  lessen  their  significance."^"*^ 

§  242,  Hauling  or  using  car  not  loaded  with  interstate 
traffic  in  interstate  train.— The  statute  covers  an  instance 
of  using  or  hauling  in  an  interstate  train  a  ear  not  loaded 
with  interstate  traffic  nor  hauled  from  one  state  to  another. 
The  statute,  as  amended  in  1896/^  prohibits  the  "hauling  or 
permitting  to  be  hauled  or  used  on  its  line,  any  car  in  viola- 
tion"  of   the   Safety   Appliance    Act.      "The   older   statute 

12C  United  Statos  v.  Wheeling  &  j^g  &  ^    E    R    Co.   167  Fed    198; 

T       P      P      Pn      ifiT     F^rl       I^R-  Clncago  &  N.  W.  Ry.  Co.  V.  United 

«;    T  \    i    V    p    rl  t    n!ll'  States!  168  Fed.  236;  United  States 

St.  Louis  &  S.   F.  K.   Co.  V.  Delk,  ^    Southern  Ry.  Co.  170  Fed.  1014; 

158    Fed.    931;    86    C.    0.   A.    95;  United  States  v.  International  &  G. 

Chicago  Junction  Ry.  v.  King,  169  N     R.    Co.    174   Fed.    638;    Hohen- 

Fed.  372;  94  C.  C.  A.  652;  United  leitner  v.   Southern   Pacific  Co.   177 

States  V.  Southern  Pacific  Rv.  Co.  Fed.   796;   Campbell   v.   Spokane   & 

169   Fed.   407;    94   C.    C.   A.'  629;  I.  E.  R.  Co.   188  Fed.  516;  Felt  v. 

Southern  Ry.   Co.  v.   Snyder,    187  Denver  &  R.  G.  R.  Co.  48  Colo.  249; 

Fed.  492;  Johnson  v.  Southern  Pacific  110  Pac.  215;  Luken  v.  Lake  Shore 

Co.  196  U.  S.  1;  25  Sup.  Ct.  158;  &  M.  S.  Ry.  Co.  248  III.  377;  94  N.  E. 

49  L.  Ed.  363;  North  CaroUna  R.  Co.  1'5. 

V.  Zachary,  232  U.  S.  248;  34  Sup.  i^d  St.  Louis  &  L  M.  Ry.  Co.  v. 

Ct.  305;    58  L.  Ed.  591;  Voelker  v.  Taylor,  210  U.  S.  281;  28  Sup.  Ct. 

Chesapeake  &  St.  P.  Ry.  Co.  116  Fed.  QlG ;  52  L.  Ed.  1061 ;  United  States 

867;     United     States     v.     Northern  y    Baltimore  &  0.  R.  Co.  170  Fed. 

Pacific  Terminal  Co.   144  Fed.  861;  ^-q 

United  States  V    St    Louis    I.  M    &  ^.'r^^^^  ^^.^j^^  ^.^^^^^^  ^j^^j,  ^1^^  ^^^.,. 

S.Ry.  Co.  154  Fed.  516;  United  States,  .      ,      ,     ,     .,  ,    ,,       j;,  ■     -p 

V.  Chicago  &  N.  W.  R;.  Co.  157  Fed.  ^^  ^^^  Jf**'   \\  ''"^l  l^^f'  .J''"  ^; 

616;   Untted   States   v.   Louisville  &  ^o.  v.  Russell,  183  Fed.   /  22;   Felt 

N.   R.   Co.    162  Fed.    185;   Chicago,  v.    Denver   &    G.    R.    Co.   4b   Colo. 

M.  &  St.  P.  Ry.  Co.  V.  United  States  249;    110  Pac.  215,   1136. 
165  Fed.  423;  United  States  v.  Wheel-  is  Section  6  of  Act. 


358  FEDERAL  SAFETY  APPLIANCE  ACT. 

was  with  reference  only  to  cars  used  in  moving  interstate 
traffic  regardless  of  whether  it  wrs  a  local  road  or  one  ex- 
tending into  several  eases.  The  reported  cases,  and  the  re- 
ports of  the  Interstate  Commerce  Commission,  show  that  it 
was  often  difficult  to  prove  in  wh^t  traffic,  local  or  interstate, 
the  car  was  being  used,  and  without  such  evidence  neither 
state  nor  national  prosecution  could  be  carried  on.  And  to 
cure  that  defect,  the  latter  statute  covers  all  cars  used  on 
any  railroad  engaged  in  interstate  traffic  regardless  of 
whether  the  particular  car  was  for  local  or  interstate  use.  "^* 

§  243.  Intrastate  car  on  interstate  railroad. — This  phase 
of  the  statute  has  recently  received  careful  attention  by  the 
Supreme  Court  of  the  United  States.  A  railroad  company 
was  indicted  rnd  convicted  on  these  facts,  as  stated  by  that 
court:  "The  defendant,  while  operating  a  railroad  which 
wag  'a  part  of  a  through  highway'  over  which  traffic  was 
continually  being  moved  from  one  state  to  another,  hauled 
over  a  part  of  its  railroad,  daring  the  month  of  February, 
1907,  five  cars,  the  couplers  upon  which  were  defective  and 
inoperative.  Two  of  the  cars  v/ere  used  at  the  time  in  mov- 
ing interstate  traffic,  and  the  other  three  in  moving  intra- 

1*  United  States  v.  Chicago,  etc.,  453;    United    States    v.    Soutliern 

Ry.  Co.  149  Fed.  Rep.  486 ;  South-  Ry.    Co.    164    Fed.    347 ;    Un-ted 

ern  Ry.  Co.  v.  United  States,  222  States  v.  Atlantic  Coast  Line,  Ap- 

U.  S.  20;  32  Sup.  Ct.  2;  56  L.  Ed.  pendix  G;    United   States  v.   Clii- 

affirming  164  Fed.  347.  cago,    etc.,    R.    Co.    162    Fed.    Rep. 

Cars  hauled  from  one  point  in  a  775.      And    so    must    empty    cars 

state  to  anotliei-  point  in  the  same  hauled     in     an     interstate     train, 

state,   loaded  with  intrastate  com-  United   States  v.   Erie  R.   Co.    166 

merce,  but   in  an  interstate  train,  Fed.    Rep.    352 ;     Erie    R.    Co.    v. 

must  be  equipped  with  automatic  Russell,     183     Fed.     722;     United 

couplers.      Elgin,    etc.,    R.    Co.    v.  States  v.  International  &  G.  N.  R. 

United    States,    168    Fed.    Rep.    1;  Co.  174  Fed.  C38;   Wabash  R.  Co. 

United    States   v.    Great  Korthern  v.  Unitcil   States,    108    Fed.    1;    93 

Ry.    Co.    145    Fed.    438;     Chicago  C.  C.  A.  93;  Pacific  Coast  Ry.  Co. 

Junction  Ry.  Co.  v.  King,  169  Fed.  v.    United    States,    173    Fed.    448; 

372;   United  States  v.  Chicago,  M.  Louisville   &  N.   R.   Co.   v.   United 

&    St.    P.    Ry.    Oo.    149    Fed.    486;  States,     186     Fed.     280;     Felt    v. 

United    States    v.    Chicago   G.    W.  Denver  &  R.   G.   R.    Co.   48   Oolo. 

R.  Co.  162  Fed.  775;  Ignited  States  249;    110  Pac.  215,  1136. 
V.   Pacific  Ooajst  Ry.  Co.  173  Fed. 


USE  IN  INTERSTATE  TRAFFIC.  359 

tate  traffic ;  but  it  does  not  appear  that  the  use  of  the  three 
was  in  connection  with  any  car  or  cars  used  in  interstate 
commerce.  The  defendant  particularly  objected  to  the  as- 
sessment of  eny  penalty  for  the  hauling  of  the  three  cars, 
and  insisted,  first,  that  such  a  hauling  in  intrastate  com- 
merce, althougli  upon  a  railroad  over  which  traffic  was  con- 
tinually being  moved  from  one  state  to  another,  was  not 
within  the  prohibition  of  the  Safety  Appliance  Acts  of 
Congress;  and,  second,  if  it  was,  those  acts  should  be  pro- 
nounced invalid,  as  being  in  excess  of  the  power  of  Congress 
under  the  commerce  clause  of  the  Constitution. ' '  ^*^  It  will 
thus  be  perceived  that  the  court  had  before  it  the  question 
of  hauling  cars  on  an  interstate  railroad  without  their  being 
hauled  in  an  interstate  train — the  hauling  of  cars  in  intra- 
state commerce.  The  court  then  proceeds,  after  the  state- 
ment quoted,  by  first  giving  an  historical  review  of  the 
statutes,  as  follows:  "The  original  act  of  March  2,  1893,^*'' 
imposed  upon  every  common  carrier  'engaged  in  interstate 
commerce  by  railroad'  the  duty  of  equipping  all  trains,  loco- 
motives, and  cars  used  on  its  line  of  railroad  in  moving 
interstate  traffic,  Math  designated  appliances  calculated  to 
promote  the  safety  of  that  traffic  and  of  the  employees  en- 
gaged in  its  movement ;  and  the  second  section  of  that  act 
made  it  unlawful  for  'any  such  common  carrier'  to  haul  or 
permit  to  be  hauled  or  used  on  its  line  of  railroad  any  car 
'and  in  moving  interstate  traffic,'  not  equipped  with  auto- 
matic couplers  capable  of  being  coupled  and  uncoupled 
without  the  necessity  of  a  man  going  between  the  ends  of 
the  cars.  The  act  of  March  2,  1903,^*°  amended  the  earlier 
one  and  enlarged  its  scope  by  declaring,  inte7'  alia,  that  its 
provisions  and  requirements  should  'apply  to  all  trains, 
locomotives,  tenders,  cars  and  similar  vehicles  used  on  any 
railroad  engaged  in  interstate  commerce,  and  in  the  terri- 

14a  The    statute    in    this    respect  i4b  27  Stat,  at  L.,  531,  Chap.  196; 

was  held  to  be  constitutional.     See  U.  S.  Comp.  Stat.  1901,  p.  3174. 
Sec.  149.     The  case  reported  below  i^c  32  Stat,  at  L.,  943,  Chap.  07.?; 

is  United  States  v.   Southern  Ry.  U.    S.    Oomp.    Stat.    Supp.     1909, 

Co.  164  Fed.  347.  p.  1143. 


360  FEDERAL  SAFETY  APPLIANCE  ACT. 

tories  and  the  District  of  Columbia,  and  to  all  other  loco- 
motives, tenders,  cars  and  similar  vehicles  used  in  connection 
therewith.'  Both  the  acts  contained  some  minor  ex- 
ceptions, but  they  have  no  real  bearing  here."  The  court 
then  proceeds:  "The  real  controversy  is  over  the  true  sig- 
nificance of  the  words  'on  any  railroad  engaged'  in  the 
first  clause  of  the  amendatory  provision.  But  for  them  the 
true  test  of  the  application  of  that  clause  to  locomotive,  car, 
or  similar  vehicle  would  be,  or  it  was  under  the  original 
act,  the  use  of  the  vehicle  in  moving  interstate  traffic.  On 
the  other  hand,  when  they  are  given  their  natural  signifi- 
cation, as  presumptively  they  should  be,  the  scope  of  the 
clause  is  such  that  the  true  test  of  its  application  is  the  use 
of  the  vehicle  on  a  railroad  which  is  a  highway  of  inter- 
state commerce,  and  not  its  use  in  moving  interstate  traffic. 
And  so  certain  is  this  that  we  think  there  would  be  no  con- 
tention to  the  contrary  were  it  not  for  the  presence 
in  the  amendatory  provision  of  the  third  clause — 'and 
to  all  other  locomotives,  tenders,  cars,  and  similar  vehicles 
used  in  connection  therewith.'  In  this  there  is  a  sug- 
gestion that  what  precedes  does  not  cover  the  entire 
field;  but  at  most  it  is  only  a  suggestion,  and  gives  no 
warrant  for  disregarding  the  plain  words,  'on  any  rail- 
road engaged'  in  the  first  clause.  True,  if  they  were 
rejected,  the  two  clauses,  in  the  instance  of  a  train  composed 
of  many  cars,  some  moving  in  interstate  traffic  and  others 
moving  in  intrastate  traffic,  would,  by  their  concurrent  opera- 
tion, bring  the  entire  train  within  the  statutes.  But  it  is 
not  necessary  to  reject  them  to  accomplish  this  result,  for 
the  first  clause,  with  these  words  in  it,  does  even  more ; 
that  is  to  say,  it  embraces  every  train  on  a  railroad  which 
is  a  highway  of  interstate  commerce,  without  regard  to  the 
class  of  traffic  which  the  cars  are  moving.  The  two  clauses 
are  in  no  wise  antagonistic,  ])ut,  at  most,  only  redundant; 
and  we  perceive  no  reason  for  believing  that  Congress  in- 
tended that  loss  than  the  full  effect  should  be  given  to  the 
moro  comprehensive  one,  but,  on  the  contrary,  good  reason 
for    )>elieving   otherwise.     As    between   the    two    opposing 


USK  IN  INTERSTATE  TRAFFIC.  3G1 

views — one  rejecting  the  words  'on  any  railroad  engaged'  in 
the  first  clause,  and  the  other  treating  the  third  clause,  as 
redundant — the  latter  is  to  be  preferred,  first,  because  it  is 
in  accord  with  the  manifest  purpose,  shown  throughout  the 
amendatory  act,  to  enlarge  the  scope  of  the  earlier  one  and 
to  make  it  more  effective ;  and,  second,  because  the  words 
which  it  would  be  necessary  to  reject  to  give  effect  to  the 
other  view  were  not  originally  in  the  amendatory  act,  but 
were  inserted  in  it  by  way  of  amendment  while  it  was  in 
process  of  adoption  ^"^  thus  making  it  certain  that  without 
them  the  act  would  not  express  the  will  of  Congress.     For 
these  reasons  it  must  be  held  that  the  original  act,  as  en- 
larged by  the  amendatory  one,  is  intended  to  embrace  all 
locomotives,  cars,  and  similar  vehicles  used  on  any  railroad 
which  is  a  highway  of  interstate  commerce. ' '  "'^    According 
to  this  decision  the  test  of  a  railroad  company's  liability  is 
the  use  of  a  vehicle  on  its  "railroad  which  is  a  highway  of 
interstate  commerce,"  and  it  is  not  necessary  to  show  that 
interstate  traffic  was  in  the  car  or  in  some  part  of  the  train 
in  which  it  was  being  moved  or  hauled.*  In  many  of  the 
earlier  cases,  therefore,  where  the  railroad  companies  were 
held  liable  on  the  ground  that  the  car  was  loaded  with  inter- 
state traffic  or  w^as  incorporated  in  a  train  hauling  inter- 
state traffic,  the  judgments  of  the  court  were  correct,  though 
placed   upon    grounds   different    from    that   taken    by   the 
Supreme   Court.     By  this   decision  it  is  not  necessary  to 
prove  that  interstate  traffic  was  aboard  the  car  or  train,  it 
being  sufficient  to  show  that  the  defendant's  railroad  was 

i4d  Fifty-sOTenth  Cong.,  1st  Ses.s ,       v.    United    States,    168    Fed.    236; 

Vol      35,     pt.     7,     p.     7300:      Id.       Norfolk   &   W.    Ry.    Co.    v.   United 

2d.  Sess.,  Vol.  36  pt.  3,  p.  22i68.  ^^^^^'^^^^   ^f'^.;  f^'l  ,^°"i'Xl"^  f 

i4e  Southern  Ry  Co.  v.  United  ?,n^VT^°;  T*  JJ°f  "^  ^*^,^'^  ^^^  f'f 
oj.  i.  ooo  TT  o  on  oo  o  n4.  n  280;  United  States  v.  W  estern  &  A. 
States   222  U.  S.  20;  32  Sup.  Ct    2;       ^  ^^  ^g^  ^^^  335 

56  L.  Ed.  /2,  affirming  164  ted^347.  j^  ^uken  v.  Lake  Shore  &  M.  S. 

For  cnticism  of  this  case  see  73  Cent.  ^     ^.^  ^48  III.  377;  94  xN.  E.  175,  the 

L.  Jr.  423.     Ihe  case  lollows  Delk  v.  „  n       x     r  th-     •    u  1  1    ^u   4. 

Oi  T      •    f  a  T7  r>   o     o-yn  tt  o   con  oupreme  Court  of  ilhnois  holds  that 

St.  Louis  &  S.  1*.  R.  Co.  220  U.  b.  580;  .,        .     .     ■         i    x.         xu      j  r    i- 

01   d        r^t    ciT    tcr  T     XT' J    con  the    test    is    whether    the    aetective 
31  Sup.  Ct.  617;  65  L.  Ed.  590,  re-  •       ■   x      i.  j. 

•       ire  T?  J   oQi    Qr  n   n    a    nc  car  was  moving  interstate  commerce 
versing  158  ied.  931    86  C.  C.  A.  9o;         .  .1      .•       ^u      ^  ■  ^-a  ■   ■      j 

1  ^   *     f   T7    A         n       000     Q         ,     '  at  the  time  the  plaintin  was  injured. 

14  A.  &  E.  Ann.  Cas.  236.    See,  also,  m  •  u  e        xu     j     •  •       1      *u 

Q.     J      .      J    ^r     0    q    T>       A  ihis  was  before  the  decision  by  the 

Tj'  i    1     'no"   A  1      mn     10^    a    wr'      Supreme  Court  of  the  United  States. 
Hesterly    98   Ark    240;    13o   S    W.  i^go^thern    R.    Co.    v.    Crockett, 

874;    Patten    V.    Faithorn.    152    111.       334  U.  S.  725;  34  Sup.  Ct.  897;  58 

^PP;.  '*-^i.?;'T'.:^o°T*'''>  ^l\  ,''-  L.  Ed.  1564;  Chicago,  M.  &  P.  S.  R. 

V.  King,  169  Fed^  372;  Lnited  States  ^^    ^_  United  States    196  Fed.  882; 

V.  International  &  G.  N.  R.  Co.  174  1100   n    a    aaa 

Fed.  638;  Chicago  &  N.  W.  Ry.  Co.  ^^^  *"•  *"•  ^-  *^*- 


'363  FEDERAL  SAFETY  APPLIANCE  ACT. 

a  highway  of  interstate  commerce.^**  Of  course,  it  may  be 
shown  in  evidence  that  cars  in  the  same  train  were  loaded 
with  interstate  traffic,  or  that  empty  cars  therein  were  being 
hauled  from  one  state  to  another;  or  it  may  be  shown  that 
interstate  traffic  or  cars  were  being  or  had  been  carried  in 
other  trains  over  the  same  railroad  of  the  defendant,  for 
the  purpose  of  showing  that  such  railroad  line  was  ' '  a  high- 
w^ay  of  interstate  commerce."  Waybills  showing  the  move- 
ment of  interstate  freight  over  the  railroad  line  in  question 
are  admissible  to  prove  the  fact  that  the  line  was  "a  high^ 
way  of  interstate  commerce;"  and  copies  of  such  bills  regu- 
larly kept  in  the  defendant's  office  at  the  point  of  shipment, 
when  properly  identified,  may  be  put  in  evidence,  without 
accounting  for  the  originals,  as  admissions  of  the  charge 
that  the  railroad  line  was  "a  highway  of  interstate  com- 
merce;" and  even  a  memorandum  of  an  employee,  made  in 
the  line  of  his  duty,  from  the  original  waybills  is  admissible 
to  prove  that  charge.^*" 

§  244.  Transportation  of  articles  of  interstate  commerce 
for  an  independent  express  company. — If  a  railroad  com- 
pany, even  though  it  has  its  lines  wholly  within  the  bound- 
aries of  a  single  state,  accept  and  transport  articles  of 
interstate  commerce  for  an  independent  express  company, 
it  is  engaged  in  interstate  commerce  and  must  equip  its  cars 

"*  This  decision  of  the  United  of  a  state."  See  also  Brinkmeier  v. 
States  Supreme  Court  in  a  measure  ISIissouri  Pacific  Ry.  Co.  224  U.  S.  268; 
clears  away  the  difficulty  the  court  32  Sup.  Ct.  412;  56  L.Ed.  758;  Brink- 
labored  under  in  Louisville  &  N.  R.  meier  v.  Missouri  Pacific  R.  Co.  81 
Co.  V.  United  States,  186  Fed.  280,  Kan.  101;  IQo  Pac.  221;  Felt  v.  Den- 
and  shows  that  the  court  was  not  ver  &  R.  G.  R.  Co.  48  Colo.  249; 
exactly  correct  in  its  interpretation  110  Pac.  215;  Burho  v.  Minneapolis 
of  the  statute  as  set  forth  in  the  &  St.  L.  Ry.  Co.  141  N.  W.  300; 
following  language,  viz.:  "These  Popplar  v.  Minneapolis,  St.  P.  & 
considerations  lead  us  to  the  con-  S.  S.  M.  Ry.  Co.  121  Minn.  413;  141 
elusion  that  the  amendment  of  1903  N.  W.  798;  Devine  v.  Illinois  Central 
was  intended  to  be  a  regulation  of  R.  Co.  156  111.  App.  369. 
railroads  while  they  are  engaged  in  "We  deem  the  true  intent  and 
interstate  commerce  and  that  the  meaning  to  be  that  the  provisions  and 
language  means  the  same  thing  as  if  requirements  respecting  train  brakes, 
the  word  'when'  were  interposed  automatic  couplers,  grab  irons,  and 
before  the  word  'engaged.'  And,  in-  the  height  of  draw  bars  shall  be  ex- 
deed,  this  is  not  a  forced  construction,  tended  to  all  railroad  vehicles  used 
but  is  one  of  the  natural  constructions  upon  railroads  engaged  in  interstate 
which  the  words  actually  used  would  commerce,  and  to  all  other  vehicles 
bear,  for  'engaged'  might,  with  equal  used  in  connection  with  them,  as  far 
propriety,  utUtr  to  a  continuous  as  the  respective  devices  and  stand- 
period  or  to  a  definite  time.  And  ards  are  capable  of  being  installed 
this  would  fo>ind  the  duty  of  adopting  upon  the  respective  vehicles."  South- 
the  lrttt<T  dcfinilion.  And  so  con-  ern  U.  Co.  v.  Crockett.  234  U.  S.  725; 
Btrucd  the  statute  is  relieved  of  the  34  Sup.  Ct.  897;  58  L.  Ed.  1564. 
objection  that  Congress  has  no  power  '^t  Louisville  &  N.  R.  Co.  v.  United 
to   regulate   the   domestic  commerce  States,  186  Fed.  280. 


USE  IN  INTERSTATE  TRAFFIC.  363 

in  the  train  with  automatic  couplers  to  escape  the  penalty 
inflicted  by  the  act  of  Congress.  "But  although  the  express 
company,"  said  Judge  Sanborn,  ''was  not  one  of  the  com- 
mon carriers  engaged  in  interstate  commerce  to  which  the 
original  interstate  commerce  act  applied,^"  the  box  of  liquor 
it  caused  to  be  transported  from  Missouri  to  Colorado  was 
an  article  of  interstate  commerce,  its  carriage  was  a  trans- 
action of  that  commerce,  and  the  express  company's  partici- 
pation in  its  transportation  was  engaging  in  interstate 
commerce.^"  Moreover,  the  interstate  commerce  act  had  been 
so  amended  that  express  companies  were  subject  to  its  pro- 
visions before  the  transportation  here  in  issue  wag  con- 
ducted.^^ The  Safet}^  Appliance  Act  declares  that  'it  shall 
be  unlawful  for  any  common  carrier  engaged  in  interstate 
commerce  by  railroad,'^''  'to  haul  or  permit  to  be  hauled  or 
used  on  its  line  any  car'  (or  engines)-" — except  four- 
wheeled  cars  and  certain  logging  cars  ^^ — 'and  in  moving 
interstate  commerce  traffic  unequipped  with  couplers  coup- 
ling automatically  by  impact, '  ^-  and  that  every  such  carrier 
shall  be  liable  to  a  penalty  of  one  hundred  dollars  for  each 
violation  of  the  statute.  The  Northwestern  Company  ^^  trans- 
ported the  box  of  liquor  upon  its  railroad  from  Boulder  to 
Sunset  for  the  express  company,  on  its  continuous  passage 
from  its  origin  in  one  state  to  its  prescribed  destination  in 
another,  and  evidence  was  rejected  upon  the  trial  that  it  was 
a  daily  occurrence  for  this  railroad  to  carry  express  matter 
in  its  cars  which  had  been  consigned  from  points  without 

« Citing  United  States  v.  Mors-  Rep.   229;   47   L.   Ed.  336;   revers- 

man,  42  Fed.  Rep.  448;   Southern  ing  127  X.  C.  521;   37  S.  E.  Rep. 

Indiana  Exp.  Co.  v.  U.  S  Exp.  Co.  138. 

88  Fed.   Rep.   659.  "Act    June    29,    1906,    S.    3591, 

"  Citing   Crutcher    v.   Kentucky,  Sees.    1    and    11;    34    Stat,   at   L. 

141    U.    S.   47;    11    Sup.   Ct.   Rep.  584,   595. 

851;   35  L.  Ed.  649;   reversing  89  "27  Stat,  at  Large,  531,  Sec.  1. 

Ky.    6;    12    S.   W.   Rep.    141;    Os-  ^Citing    Johnson     v.     Southern 

boVne  V.   Florida,   164    U.   S.   650;  Pae.  R.  Co.  19G  U.  S.   1 ;   25  Sup. 

17    Sup.   Ct.   Rep.   214;    41   L.   Ed.  Ct.   Rep.    158;    49   L.  Ed.  3o^;    re- 

586;   ai!irming  33  Fla.  162;   25  L.  versing  54  C.  C.  A.  508;   117  Fed. 

R.   A.    120;    4   Interst.   Com.   Rep.  Rep.  462. 

731;    14  So.  Rep.  588;   39  Am.  St.  =' Citing  Sec.  6  of  Act. 

Rep.  90 ;   Caluwen  v.  North  Caro-  ^  Citing  Sec.  2  of  Act. 

Una,   187   U.   S.   622;   23   Sup.  Ct.  ^^The    defendant. 


364  FEDERAL    SAFETY    APPLIANCE   ACT. 

to  places  within  the  state  of  Colorado.  That  rejected  evi- 
dence should  have  been  received  because  it  had  a  tendency 
to  show  that  the  railroad  company  was  engaged  in  inter- 
state commerce,  and  if  the  testimony  had  fulfilled  the  prom- 
ise of  the  question  propounded  to  elicit  it,  and  had  been 
uncontradicted,  the  fact  would  have  been  established  that 
the  company  was  thus  engaged  within  the  meaning  of  the 
Safety  Appliance  Act.  The  transportation  by  a  common 
carrier  by  railroads  of  articles  of  interstate  commerce  for 
an  independent  express  company  is  engaging  in  interstate 
commerce  by  railroad  as  effectually  as  their  carriage  by  it 
for  the  vendors  or  consignors."  "Our  conclusion  is  that 
a  common  carrier  which  operates  a  railroad  entirely  within 
a  single  state  and  transports  thereon  articles  of  commerce 
shipped  in  continuous  passage  from  places  without  the  state 
to  stations  on  its  road,  or  from  stations  on  its  road  to  points 
without  the  state,  is  subject  to  the  provisions  of  the  Safety 
Appliance  Acts,  although  it  carries  the  property  free  from 
a  common  control,  management  or  arrangement  with  an- 
other carrier  for  continuous  carriages  or  shipments  of  the 
goods."-'' 

§  245.  Distance  defective  car  hauled. — It  is  immaterial 
how  short  a  distance  the  defective  ear  is  hauled;  if  hauled 
at  all  the  railroad  company  is  liable.^**  This  is  particularly 
true  of  terminal  railroads.-^  In  fact  the  defective  car  need 
not  be  moved  at  all,  if  it  is  "used"  in  interstate  commerce.-^* 

2<  United  States  v.  Colorado,  etc.,  Rep.  403;  United  States  v.  Chicago, 

R.  Co.  157  Fed.  Rep.  321,  342.  etc.,   R.   Co.    143   Fed.   353;   United 

This    Colorado    railroad    was    cer-  States  v.  Southern  Ry.  Co.  135  Fed. 

tainly  "a  highway  of  interstate  com-  122;  Crawford  v.  New  York,  etc.,  R. 

merce"  for  it  was  devoted  to  carrying  Co.    10   Am.    &   Eng.   R.   Cas.    166; 

such  parcels  or  packages  within  the  United  States  v.  Pittsburg,  etc.,  R. 

interpretation  of  the  Supreme  Court  Co.   143  Fed.  360;  United  States  v. 

of   the   United  States  in   the  recent  Union    Stockyards    &    T.    Co.    192 

decision  explained  in  section  243.  Fed.  330;  United  States  v.  Erie  R. 

"•United  States  v.  Denver  &  R.  Co.  35  Sup.  Ct.  621;  212  Fed.  853; 

G.    R.    Co.    163    Fed.    519;    United  129  C.  C.  A.  307. 
States  V.  Central  of  Georgia  Ry.  Co.  A  movement  of  a  car  not  exceeding 

157     Fed.    893;    United    States    v.  twenty  feet,  resulting  in  injuring  an 

Southern   Pacific  Co.   167   Fed.  099;  employee,  was  held  to  be  a  violation 

T'nited  States  v.  Southern  Pacific  Co.  of  the  statute.    Chicago,  etc.,  R.  Co. 

154  Fed.  897.  v.  King,  169  Fed.  Rep.  372  (decided 

"United  States  v.  Northern  Pac.  February  3,  1909);  Donegan  v.  Balti- 

Terminal  Co.  144  Fed.  Hep.  861;  more,  etc.,  R.  Co.  105  Fed.  Rep.  869. 
United   States  v.   Pliiladclphia,   etc.,  -''•  See  section  250. 

R.  Co.  16(J  Fed.  Rep.  696;  162  P'ed. 


USE  IN  INTERSTATE  TRATPIC. 


365 


§  246.  Switching  car. — The  statute  applies  to  a  car  while 
being  used  in  switching  movements.-'^  Thus  a  ear,  having 
a  defective  coupler,  was  one  belonging  to  the  Wabash  Rail- 
road Company,  and  was  known  and  designated  as  a  foreign 
car.  It  was  brought  into  Minneapolis,  Minnesota,  from 
Wisconsin  by  the  Soo  Railroad,  delivered  by  it  to  the  Great 
Northern  Railway  Company,  the  defendant,  loaded  with 
coal,  and  by  the  defendant  delivered  to  the  consignee.  It 
was  then  unloaded  and  placed  on  a  switch  of  the  defendant 
for  the  purpose  of  redelivery  to  the  Soo  Railroad.  It  was 
delivered  to  that  railroad,  and  afterwards  loaded  with 
shingles  in  Minnesota,  and  taken  by  the  Soo  road  thus 
loaded  into  Wisconsin  on  its  return  home.  While  it  was 
standing  on  the  defendant's  track,  and  before  its  delivery 
to  the  Soo  road,  an  employee  of  the  defendant  was  injured 
because  of  a  defective  coupling;  and  it  was  held  that  the 


-« United  States  v.  Pittsburg,  etc., 
R.  Co.  143  Fed.  Rep.  360;  Craw- 
ford V.  New  York,  etc.,  R.  Co.  10 
Am.  &  Eng.  Neg.  Cas.  166;  United 
States  V.  Northern  Pacific  T.  Co. 
144  Fed.  Rep.  861;  United  States  v. 
Pittsburg,  etc.,  R.  Co.  143  Fed.  Rep. 
360;  United  States  v.  Chicago,  etc., 
Ry.  Co.  143  Fed.  Rep.  353;  Chicago, 
etc.,  R.  Co.  V.  United  States,  165  Fed. 
Rep.  425.  United  States  v.  Phila- 
delphia, etc.,  Ry.  Co.  160  Fed.  Rep. 
696,  and  162  Fed.  Rep.  403;  United 
States  V.  Lehigh  Valley  R.  Co.  162 
Fed.  Rep.  410;  United  States  v. 
Philadelphia,  etc.,  R.  Co.  162  Fed. 
Rep.  405;  United  States  v.  Penn- 
sylvania R.  Co.  102  Fed.  Rep.  408; 
Elgin,  etc.,  R.  Co.  v.  United  States, 
168  Fed.  Rep.  1  (decided  February  3, 
1909);  Wabash  R.  Co.  v.  United 
States,  168  Fed.  Rep.  1  (decided 
February  3,  1909);  United  States  v. 
Southern  Ry.  Co.  167  Fed.  699; 
Appendix  G;  Johnson  v.  Great 
Northern  Ry.  Co.  178  Fed.  643; 
Erie  R.  Co.  v.  Russell,  183  Fed.  722; 
Siegel  V.  N.  Y.  Central  R.  Co.  178 
Fed.  873;  Chicago,  M.  &  St.  P.  Ry. 
Co.  V.  United  States,  165  Fed.  423; 
Patten  v.  Faithorn,  152  111.  App.  426. 


The  rule  laid  down  in  this  section  is 
adopted  by  the  Supreme  Court. 
Delk  V.  St.  Louis  &  S.  F.  R.  Co.  220 
U.  S.  580;  31  Sup.  Ct.  617;  55  L. 
Ed.  590,  reversing  158  Fed.  931;  86 
C.  C.  A.  95;  14  A.  &  E.  Ann.  Cas. 
233;  Union  Stock  Yards  v.  United 
States,  169  Fed.  409;  United  States  v. 
Southern  Pacific  Co.,  Appendix  G; 
Mobile,  J.  &  K.  C.  Co.  v.  Bromberg, 
141  Ala.  258;  37  So.  395;  United 
States  V.  Chesapeake  &  Ohio  Ry. 
Co.  213  Fed.  748;  Erie  R.  Co.  v. 
United  States,  197  Fed.  287;  United 
States  v.  Atlantic  Coast  Line  R.  Co. 
214  Fed.  498;  United  States  v.  Pere 
Marquette  R.  Co.  211  Fed.  220; 
Atchison,  T.  &  S.  F.  Ry.  Co.  v. 
United  States,  198  Fed.  637;  117  C. 
C.  A.  341;  United  States  v.  Grand 
Trunk,  203  Fed.  775;  La  Mere  v.  Ry. 
Trans.  Co.  125  Minn.  526;  145  N.  W. 
1068;  Stearns  v.  Chicago,  R.  I.  & 
P.  R.  Co.  148  N.  W.  128;  Chicago, 
B.  &  Q.  R.  Co.  v.  United  States,  211 
Fed.  12;  127  C.  C.  A.  438;  Per  Contra 
Erie  R.  Co.  v.  United  States,  197 
Fed.  287;  116  C.  C.  A.  649;  United 
States  v.  Erie  R.  Co.  212  Fed.  853; 
United  States  v.  New  York  Central  & 
H.  R.  R.  Co.  205  Fed.  428. 


366  FEDERAL   SAFETY   APPLIANCE   ACT. 

car  at  the  time  was  used  in  interstate  commerce.^  The  stat- 
ute applies  to  the  moving  of  a  car  on  a  private  switch  in 
connection  with  a  car  loaded  with  interstate  traffic  ;^  or  in 
a  foundry  yard.^  So  where  the  Erie  Railroad  Company  had 
a  yard  at  Jersey  City  and  another  at  Weehawken  and  a 
third  at  Bergen,  the  two  former  yards  connected  by  double 
tracks  running  over  a  distance  of  two  miles  in  one  instance 
and  three  and  a  half  in  another  with  the  latter  yard,  passing 
through  a  very  dark  tunnel  almost  a  mile  long  (only  a  sin- 
gle track  through  the  tunnel),  the  greater  part  of  the 
freight  being  carried  from  Jersey  City  and  Weehawken  to 
Bergen  in  transfer  trains,  usually  of  about  25  cars  run  at 
irregular  intervals,  it  was  held  that  cars  thus  hauled  must 
both  have  proper  automatic  couplers  and  grabirons,  and  the 
trains  must  be  equipped  with  automatic  brakes.  "We  can- 
not assent  to  the  view,"  said  Justice  Van  Devanter,  "that 
the  yards  at  Jersey  City,  Weehawken  and  Bergen  are  but 
a  single  yard.  They  doubtless  are  important  accessories  to 
the  defendant's  eastern  terminal,  but  that  does  not  make 
them  one  yard.  They  lie  from  two  to  three  and  one-half 
miles  apart,  are  not  so  linked  together  that  cars  may  be 
moved  upon  one  to  another  with  the  freedom  which  is  usual 
and  essential  in  intrayard  movements,  and  are  in  actual 
practice  treated  as  separate  yards."* 


*  Johnson  v.  Great  Northern  Ry.  =  Gray  v.  Louisville  &  N.  R.  Co. 

Co.  178  Fed.  643.     The  court  relied  197  Fed.  874. 

upon    Johnson    v.    Southern    Pacific  ^  Devine  v.  Chicago  &  C.  R.  Co. 

Co.   196  U.  S.   1;  25  Sup.  Ct.   158;  259  111.  449;  102  N.  E.  803,  reversing 

49  L.  Ed.  363  and  Voelker  v.  Chicago,  174  111.  App.  324. 

M.  &  St.  P.  Ry.  Co.  116  Fed.  867;  ^United  States  v.  Erie  R.  Co.  35 

same  case  on  appeal,  129  Fed.  522;  Sup.  Ct.  621,  reversing  212  Fed.  853; 

65  C.  C.  A.  226;  70  L.  R.  A.  264.  129  C.  C.  A.  307,  on  first  appeal  197 

Fed.  287;  116  C.  C.  A.  649. 


USE  IN  INTERSTATE  TRAFFIC.  367 

§  247.  Belt  railroad — Terminal  road.— The  statute  ap- 
plies to  cars  hauled  on  a  belt  railroad,  used  as  a  link  be- 
tween railroads  engaged  in  interstate  commerce.-^  So  it 
applies  to  a  terminal  road,  and  to  those  delivering  to  and 
receiving  cars  from  it.-®  "When,  therefore,  the  terminal 
company  is  engaged  in  effecting  a  transfer  of  one  of  those 
cars  from  one  line  of  railway  to  another,  it  is  itself  engaged 
in  handling  a  car  used  in  moving  interstate  traffic.  Thus 
far  there  can  be  absolutely  no  evil.  But  what  is  the  differ- 
ence if  it  takes  the  car  from  one  of  the  lines  and  moves  it 
to  its  own  team  track,  there  to  be  unloaded,  or  moves  it 
back  empty  and  places  it  in  one  of  the  lines  again  to  be  for- 
warded elsewhere?  In  either  event  it  handles  a  car  used 
in  the  designated  traffic.  So  it  does  with  equal  fault  when 
it  moves  a  car  used  for  moving  interstate  traffic  set  in  by  one 
of  the  lines  to  a  convenient  engine  upon  the  yard,  to  be 
unloaded  of  its  coal  designed  for  use  by  such  engine.  It  is 
hauling  or  using  a  car,  the  particular  use  of  which  is  in- 
hibited by  the  statute."^®  "It  must  be  conceded  that  the 
Stockyards  Company  would  not  be  a  common  carrier,  nor 
the  property  used  by  it  a  railroad,  if  its  operations  were 
confined  to  maintaining  the  sheds  or  pens,  to  unloading 
shipments  thereto,  to  loading  shipments  therefrom,  and  to 

27  Interstate  Stock  Yards  v.  In-  United  States  v.  Union  Stock 
dianapolis  Union  Ry.  Oo.  99  Fed.  Yards  Co.  UGl  Fed.  Eep.  919; 
Rep.  472;  United  States  v.  Union  affirmed,  169  Fed.  404;  Belt  R). 
Stock  Yards  Co.  IGl  Fed.  Rep.  Co.  v.  United  States,  168  Fed.  542; 
919;  Belt  Ry.  Co.  v.  United  States;  see  Appendix  G;  Chicago,  B.  &  Q.  R. 
see  Appendix  G;  Belt  Rv.  Co.  v.  Co.  v.  United  States,  211  Fed.  12; 
United  States,  168  Fed.  Rep.  542  127  CO.  A  438;  United  States  v. 
(decided  February  3,  1909) .  Pere  Marquette  R.  Co.  211  Fed,  220. 
^     \^   .,    ,  c.^  X            /~ii  •              4-  It  may  be  questioned  whether  a 

28  L  mted  States  v.  Chicago   etc.,  ^^^^^^^  /J   ^^^^^  ^^  ^  ^^^^^^ 

R.  Co.   143  Fed.  Rep.  353;   United  ^^^^.^^  ^^  ^^^^^  ^^   ^^-^^  i^.   ^.^^^^^ 

States   V.   Southern   Pac.    Co.    15}-  ^.j^gg^    ^^.^g^     gjuce    the    amendment 

Fed.    Rep.   8'97;    United   States   v.  approved  March  2.  1903,  makes  the 

Northern    Pac.    T.    Co.     144    Fed  provisions  and  requirements  of  that 

Rep.  861;   United  States  v.  Union  amendatory   act,   as   well   as   of  the 

Stockyards  &  T.  Co.  192  Fed.  330.  original,  apply  to  all  'cars  and  similar 

29  United  States  v.  Northern  vehicles  used  on  any  railroad  en- 
Pacific  Terminal  Co.  144  Fed.  Rep.  gaged  in  interstate  commerce.'  " 
861;  Chicago,  etc.,  R.  Co.  v.  United  States  v.  Union,  etc.,  Co. 
United  States,  165  Fed.  Rep.  423;  161  Fed.  Rep.  919. 


ggg  FEDERAL   SAFETY   APPLIANCE   ACT. 

feeding,  watering,  caring  for,  and  otherwise  handling  live 
stock  therein.  But  its  operations  are  not  thus  confined. 
On  the  contrary,  they  include  the  maintenance  and  use  of 
railroad  tracks  and  locomotives,  the  employment  of  a  corps 
of  operatives  in  that  connection,  and  the  carriage  for  hire 
over  its  tracks  of  all  live  stock  destined  to  or  from  sheds 
or  pens,  which,  in  effect,  are  the  depot  of  the  railroad  com- 
pany for  the  delivery  and  shipment  of  live  stock  at  South 
Omaha.  The  carriage  of  these  shipments  from  the  transfer 
track  to  the  sheds  or  pens,  and  vice  versa,  is  no  less  a  part 
of  their  transit  between  their  points  of  origin  and  destina- 
tion than  is  their  carriage  over  any  other  portion  of  the 
route.  *  *  *  In  those  circumstances  controlling  decisions 
leave  no  room  to  doubt  that  it  is  a  common  carrier  engaged 
in  interstate  commerce  by  railroads  within  the  meaning  of 
the  Safety  Appliance  Law. ' '  ^^^ 

§  248.  Car  on  spur  track.— In  a  case  in  Alabama  the  evi- 
dence showed  that  the  defendant  operated  a  railroad  running 
between  Birmingham  of  that  state  and  Memphis  in  the  state 
of  Tennessee.  The  plaintiff  was  in  its  employ  and  service  at 
the  time  he  received  his  injuries  as  brakeman,  and  was  in- 
jured while  in  the  act  of  coupling  a  car  to  a  switch  engine 
on  a  spur  track  a  mile  from  the  main  track,  this  spur  track 
joining  the  main  track  at  Carbon  Hill,  a  station  of  the  defend- 
ant. At  the  time  of  the  injury  the  car  was  being  switched 
on  the  spur  at  a  coal  mine  preparatory  to  being  carried  to 
Carbon  Hill  by  defendant's  switch  engine  in  charge  of  its 
employes,  to  be  then  shipped  over  its  main  line.  The  switch 
engine  never  went  further  than  Carbon  Hill,  and  was  used 
for  no  other  purpose  than  switching,  not  being  used  on  the 
main  line,  but  being  used  merely  for  carrying  cars  to  the 
station  from  the  mines,  and  then  placing  the  cars  on  a 
special  siding  at  the  station,  Carbon  Hill,  from  which  tney 
were  taken  by  regular  trains  to  the  point  of  destination 

2ba  United  States  v.  Union  Stock   Yards  Co.,    169  Fed.  404. 


USE  IN  INTERSTATE  TRAFFIC.  359 

After  the  car  had  been  loaded  at  the  mines  and  put  on  the 
storage  track  or  special  siding  at  Carbon  Hill,  it  was  there- 
after billed  and  shipped  from  Carbon  Hill  to  Aberdeen, 
Mississippi,  by  the  company  owning  the  coal  mines.  Some- 
times, also,  cars  were  billed  from  the  mines.  There  was 
nothing  to  show  that  any  instructions  whatever  had  been 
given  by  the  shipper  before  the  car  reached  Carbon  Hill  as 
to  its  destination  or  intended  destination ;  but  after  being 
placed  on  the  storage  track  at  Carbon  Hill  it  was  picked  up 
by  a  regular  train  and  carried  to  Aberdeen.  So  far  as  the 
evidence  showed,  the  oar  at  the  time  of  the  accident,  while 
still  at  the  mines,  might  have  been  intended  for  shipment 
by  the  mine  owner  to  some  point  within  the  state.  Upon 
these  facts  the  court  refused  to  disturb  the  verdict  of  the 
jury  to  the  effect  that  the  car  was  engaged  in  interstate  com- 
merce at  the  time  the  defendant  was  injured  by  a  defective 
coupling  on  the  car.^° 

§  249.  ' '  Used  in  moving  interstate  traffic ' ' — Sending  car 
to  repair  shop — Making  up  train.— The  phrase  "used  in 
moving  interstate  traffic"  does  not  mean  that  a  car  must 
be  actually  loaded  and  on  its  journey  from  one  state  to  an- 
other in  order  to  be  within  the  provisions  of  the  statute; 
but  only  that  it  has  been  intended  and  is  intended  to  be  so 
used  whenever  required ;  and  it  is  a  violation  of  the  statute 
to  move  such  a  car,  if  not  equipped  with  automatic  brakes, 
from  one  state  to  another  as  a  part  of  a  train,  although  it 
is  empty  at  the  time;  nor  is  the  mere  fact  that  it  is  destined 
for  a  repair  shop  a  defense.^^    The  statute  applies  to  making 

30  Kansas    City,    etc.,    R.    Co.    v.  Ey.  Co.  145  Fed.  Rep.  438;  Elgin, 

Flippo,  138  Ala.  487;  35  So.  Rep.  457;  etc.,   R.  Co.  v.  United  States,   168 

Chicago,  etc.,  R.  Co.  V.  United  States,  Fed.  Rep.  1    (decided  February  3, 

165  Fed.  Rep.  423;  Gray  V.  Louisville  1909)  ;    United  States  v.  Philadel- 

^^■]^-C^^-^^'^^^^-f'^'^:        ^  ^^  pMa,   e.tc.,   R.   Co.    160  Fed.   Rep. 

Under  the  recent  decision  of  the  gg        jg^    ^^^    ^        4^3      United 

Supreme  Court  of  the  United  States  c.   2  -n  1        •     -o    /~i      i^r. 

this  decision  is  correct  in  its  general  states  v.  Pennsylvanm  R.  Co.  162 

result.    See  section  159.  Fed.  Rep.  408    (see  Appendix  G)  ; 

='  United     States     v.     St.     Louis,  United  States  v.  Philadelphia,  etc., 

etc.,    R.    Co.    154    Fed.    Rep.    516;  R.    Co.    162    Fed.    Rep.    405     (see 

United    States    v.    Great    Northern  Appendix    G) ;    United    States    v. 


370  FEDERAL   SAFETY   APPLIANCE   ACT. 

up  the  train  for  the  purpose  of  moving  interstate  traffic.^^ 
And  so  it  applies  to  a  dining  ear  standing  on  a  side  track 
waiting  to  be  hitched  onto  its  regular  train.^^ 

§  250.  Hauling  car  not  essential  to  commission  of  offense 
— Use  of  car.—  If  a  car  is  used  in  interstate  commerce  the 
statute  is  violated,  and  it  is  not  necessary  that  it  be  hauled 
to  constitute  its  violation.  "In  section  two  it  is  the  hauling 
or  using  of  the  car  that  is  condemned.  In  section  four  it 
is  the  using  alone  that  is  condemned.  The  former  section 
reads,  it  shall  be  unlawful  to  'haul  or  permit  to  be  hauled 
or  used, '  etc. ;  the  latter  reads,  it  shall  be  unlawful  for  any 
railroad  'to  use  any  car,'  etc.  The  penalty  is  imposed  in 
section  six,  when  the  car  is  'hauled  or  used.'  Is  the  de- 
fendant 's  contention  true,  that  a  hauling  is  absolutely  neces- 
sary to  complete  the  offense?  The  statute  forbids  hauling 
and  using.  Why  are  both  words  used?  If  the  car  was 
fully  loaded  and  on  the  track  ready  to  be  started  as  a  part 
of  an  interstate  train,  with  the  engine  attached  and  fired, 
and  requiring  only  the  touch  of  the  engineer  to  start,  would 
not  the  car  be  'used'  or  in  use,  within  the  statute,  before 
it  was  hauled  ?  If  it  were  without  an  automatic  coupler,  so 
that  the  brakeman  would  have  to  go  between  the  cars  to 
couple  them,  it  would  clearly  be  wdthin  the  mischief  the 
statute  was  intended  to  prevent.  'Used'  has  other  mean- 
ings than  'hauled.'  It  is  a  broader  word."^^*  In  another 
case  it  was  said  "After  the  coupler  became  defective,  and 
could  not  be  coupled  without  going  between  the  ends  of 

Lehigh  Valley  R.  Co.  162  Fed.  Rep.  Co.  19G  U.  S.  1;  25  Sup.  Ct.  Rep.  158, 

410  (see  160  Fed.  696,  Appendix  G);  reversing  117  Fed.  Rep.  462;  54  C. 

United  States  v.  Louisville,  etc.,  R.  C.  A.  508;  Chicago,  etc.,  R.  Co.  v. 

Co.    162    Fed.    Rep.    185;    Chicago,  United   States,    165   Fed.    Rep.   423; 

M.  &  St.  P.  Ry.  Co.  165  Fed.  423;  United  States  v.  Erie  R.  Co.  35  Sup. 

91  C.  C.  A.  373.     But  as  to  hauling  Ct.  621,  reversing  212  Fed.  853;  129 

to  a  repair  shop,  see  now  section  206.  C.  C.  A.  307;  on  first  appeal  197  Fed. 

But    not    under    the    Mas.sachusetts  287;  116  C.  C.  A.  649. 

state  statute.    Taylor  v.  Boston,  etc.,  ^^'  United   States   v.   St.   Louis   S. 

R.  Co.  188  Mass.  390;  74  N.  E.  Rep.  W.    Ry.   Co.,    Appendix   G;   United 

591.  States  v.  International  &  G.  W.  Ry. 

'2  Mobile,  etc.,  R.  Co.  V.  Bromberg,  Co.  174  Fed.  638;  98  C.  C.  A.  392; 

141  Ala.  258;  37  So.  Rep.  395;  United  United  States  v.  St.  Louis,  I.  M.  &  S. 

States    V.    Northern    Pacific    T.    Co.  Ry.  Co.  154  Fed.  516;  United  States 

144  F(-d.  Rep.  861.  v.  Spokane  &  I.  E.  R.  Co.  206  Fed. 

"  Johnson    v.    Southern   Pac.    Ry.  988. 


USE  IN  INTERSTATE  TRAFFIC.  37I 

the  cars,  it  became  unlawful  for  the  railroad  company  to 
haul  it,  or  permit  it  to  be  hauled,  or  used  on  its  line.  It 
then  became  the  duty  of  the  railroad  company  to  withdraw 
the  ear  from  use,  and  have  it  repaired  to  conform  with  the 
law  before  using  it  further. "  ^^'^ 

§  251.  Car  not  used  in  interstate  commerce. — Of  course, 
a  car  not  used  iu  interstate  commerce  does  not  come  within 
the  provisions  of  the  statute ;  but  if  it  is  hauled  in  an  inter- 
state train  of  cars  it  does;  because  the  danger  to  employes 
engaged  in  transportation  of  interstate  traffic — whom  it  was 
the  design  of  Congress  to  protect — is  just  as  imminent  as  if 
the  car  was  used  in  interstate  commerce.^*  And  so  the  same 
is  true  if  it  be  hauled  over  a  railroad  devoted  as  a  highway 
of  interstate  commerce.^*"^ 

§252.  Interstate  car  in  "connection"  with  intrastate 
car. — ^Under  the  recent  decision  of  the  Supreme  Court  of 
the  United  States  ^^'^  it  is  now  immaterial  whether  the  car 
out  of  repair  was  or  was  not  used  in  immediate  **  connec- 
tion" with  an  interstate  car.  The  amendment  of  1903 
provides  that  the  Act  of  1893  "shall  be  held  to  apply  to  all 
trains,  locomotives,  tenders,  cars  and  similar  vehicles  used 
on  any  railroad  engaged  in  interstate  commerce"  "and  to 
all  other  locomotives,  tenders,  cars  and  similar  vehicles 
used  in  connection  therewith."  Before  the  decision  of  the 
Supreme  Court  above  referred  to,  in  a  case  in  the  Sixth 
District  it  appeared  that  * '  Near  to  the  forward  end  of  it  was 
a  car  loaded  with  freight,  some  of  which  was  consigned  to 
a  point  or  points"  in  another  state.    It  was  "not  charged 

33b  St.  Louis  &  S.  F.  Ry.  Co.  v.  Atl.  Rep.  90;  Elgin,  etc.,  R.  Co.  v. 

Delk,   158   Fed.  931;   86  C.  C.  A.  United    States,    168    Fed.    Rep.    1 

95;    14   A.   &   E.   Amu    Cas.    233;  (decided  February  3,   1909);  United 

reversed  in  Delk  v.  St   Louis  &  S.  States  v.  Chicago,  etc.,  R.  Co.  162 

F.  R.  Co.  220  U.  S.  580;  31  Sup.      ™  ^''P-  '(^-  .        „  ,  . 

r<4.    CT7     EC  T    TTij    coA  1,  i       A  CoHgrcss  has  no  power  to  regulate 

Ct.  617;  55  L   Ed.  590  but  not  on       ^^^    ^^^    ^^    ^^^^    ^^^    employed    in 

this  point  which  was  expressly  interstate  commerce,  and  the  Safety 
approved  by  the  Supreme  Court.  Appliance  Act  cannot  be  so  con- 
United  States  V.  Southern  Pacific  strued.  United  States  v.  Erie  R. 
Co.    Appendix  G.  Co.  106  Fed.  Rep.  352. 

34  Winkler  v.  Philadelphia,  etc.,  »**  See  section  243;  United  States 

R.    Co.    4    Penn.     (Del.)     387;    53       v.  International  &  G.  N.  R.  Co.  174 

Fed.  638;  98  C.  C.  A.  392;  Chi-^ago 

Junction  Ry.  Co.  v.  King,  169  Fed. 

372;  94  C.  C.  A.  652;  Chicago  &  N. 

W.   Ry.  Co.  v.  United  States,   168 

Fed.  236. 


3J2  FEDERAL   SAFETY   APPLIANCE   ACT. 

that  this  car  was  not  equipped  with  the  proper  couplings 
and  handholds.  Toward  the  rear  end  of  the  train  were  the 
four  freight  cars  in  question,  not  alleged  to  be  carrying 
interstate  freight,  which  were  not  equipped  with  the  re- 
quired couplings  as  to  the  two  cars,  nor  with  proper  hand- 
holds as  to  the  other  two.  Between  these  and  the  car  carrying 
interstate  freight  were  other  cars  not  alleged  to  be  carry- 
ing interstate  freight  and  not  alleged  to  be  without  the 
required  couplings  or  handholds."  As  the  cars  out  of 
repair  were  not  alleged  to  be  in  interstate  commerce  they 
were  considered  to  be  intrastate  cars;  and  as  there  was  a 
car  not  alleged  to  be  out  of  repair  between  them  and  the 
interstate  car,  it  was  considered  that  such  car  must  also 
be  regarded  as  an  intrastate  car;  and,  therefore,  as  there 
was  an  intrastate  car,  not  out  of  repair,  between  the  inter- 
state car  and  the  intrastate  car  out  of  repair  (and  which 
was  the  basis  of  the  action  on  the  part  of  the  government), 
it  was  claimed  that  such  out-of-repair  cars  were  not  "used 
in  connection"  with  the  interstate  car,  it  being  argued  "that 
the  'connection'  of  the  ear  carrying  interstate  freight  which 
the  act  intends  is  an  immediate  connection  with  the  cars 
not  properly  equipped. ' '  But  the  court,  although  admitting 
"there  was  some  ground  for  argument  that  the  law  should 
have  such  restricted  operation,"  because  of  its  penal  char- 
acter, considered  that  "the  trend  of  decisions  of  circuit 
courts  and  the  circuit  courts  of  appeal  had  been  the  other 
way,  and  is  to  the  effect  that  the  connection  of  the  cars  in 
the  trains  is  not  required  to  be  immediate,  and  we  are  not 
so  far  convinced  that  those  decisions  are  wrong  as  to  justify 
us  in  holding  to  the  contrary."^  Exactly  the  opposite  had 
been  held  in  the  Seventh  Circuit.-  Of  course,  as  we  have 
above  stated,  these  cases  need  not  now,  upon  this  point, 
be  considered.^    "Every  railroad  company  engaged  in  inter- 

•  Louisville  &  N.  R.  Co.  v.  United  R.  Co.  166  Fed.  997.    See  also  Siegel 

States,  186  Fed.  2S0;  Norfolk  &  W.  v.  New  York  Central  &  H.  R.  R.  Co. 

Ry.  Co.  V.  United  States,   177  Fed.  178  Fed.  873. 

623;    101    C.    C.    A.   249;    Louisville  '  gge  United  States  v.  International 

&  N.  R.  Co.  V.  United  States.   186  &  G.  N.  R.  Co.  174  Fed.  638;  Wabash 

Fed.  280;  108  C.  C.  A.  326;  United  R.  Co.  v.  United  States,  168  Fed.  1; 

States  V.  Western  &  A.  R.  Co.   184  ChicaRo  Junction   Ry.  Co.   v.   King, 

Fed.   336.  169  Fed.  372;  Chieago  &  N.  W.  Ry. 

2  United  States  v.  Illinois  C;eiitr:il  Co.  v.  United  States,  168  Fed.  236; 


USE  IN  INTERSTATE  TRAFFIC.  373 

state  commerce  must  equip  with  safety  appliances  all  of  its 
cars  aud  all  of  its  trains,  regardless  of  the  service  in  which 
they  are  employed,"* 

§  253.  Use  of  car  in  interstate  commerce. — Since  the  mere 
use  of  an  improperly  eciuipped  car  in  interstate  commerce 
is  an  offense  under  the  Federal  Safety  Appliance  Act,  the  in- 
quiry naturally  arises,  "What  is  the  use  that  the  statute 
lorhids?"  Of  course,  if  a  car  is  loaded  with  interstate 
traffic  and  hauled  in  a  train  of  cars  it  is  "used."  If  it  is 
empty  and  hauled  in  an  interstate  train  it  is  also  in  "use"; 
for  an  offense  is  committed.  Under  the  recent  decision  of 
the  Supreme  Court  of  the  United  States^  whether  loaded 
or  unleaded,  even  if  it  be  an  intrastate  car  hauled  in  an 
intrastate  train,  yet  if  it  be  hauled  over  a  railroad  that  is 
"a  highway  of  interstate  commerce"  it  is  an  offense  whether 
we  regard  it  as  either  hauled  or  "used."  Under  the  de- 
cision cited  in  the  next  previous  section''  if  the  car  be  merely 
loaded  with  interstate  traffic  it  is  "used"  in  interstate  com- 
merce ;  and  applying  the  reasoning  of  the  Supreme  Court 
above  referred  to^  it  would  seem  that  if  it  be  merely  loaded 
for  removal  with  intrastate  commerce  it  is  "used"  within 
the  prohibition  of  the  statute ;  indeed,  combining  that  de- 
cision with  the  decision  concerning  empty  cars,  it  would 
seem  to  be  a  logical  result  of  their  trend  that  an  empty 
intrastate  car  designed  or  intended  to  be  hauled  on  a  rail- 
road which  is  "a  highway  of  interstate  commerce"  is  also 
"used"  within  the  prohibition  of  the  statute.  But  it  is 
readily  seen  that  here  we  are  treading  upon  dangerous 
ground  and  practically  losing  sight  of  those  instances  wholly 
under  the  control  of  a  state.  At  this  point  courts  are 
bound,  in  all  likelihood,  to  differ,  and  only  the  commanding 
decision  of  the  Federal  Supreme  Court  can  settle  the  ques- 
tion.'^ 

United  States  v.  Southern  Pacific,  169  &  R.  G.  R.  Co.  48  Colo.  249;  110  Pac. 

Fed.  407;  United  States  v.  Chicago  &  215. 

N.  W.  Ry.  Co.  157  Fed.  616;  United  *  United  States  v.  Pere  Marquette 

States  V.  Chicago  G.  W.  Ry.  Co.  162  R.  Co.  211  Fed.  220;  Southern  Ry. 

Fed.  775;  United  States  V.Chesapeake  Co.  v.  United  States,  222  U.  S.  20; 

&  O.  Ry.  Co.,  Appendix  G;  United  32  Sup.  Ct.  2;  56  L.  Ed.  72;  Wabash 

States   V.   Southern   Pacific   Co.    167  R.  Co.  v.  United  States,  168  Fed.  1; 

Fed.  699;  United  States  v.  Southern  9-3  C.  C.  A.  393;  Lucas  v.  Peoria  &  E. 

Ry.  Co.,  Appendix  G;  United  States  Ry.   Co.    171    111.   App.    1;   Daly   v. 

V.  Toledo  Terminal  R.  Co.,  Appendix  Illinois  Central  R.  Co.  170  111.  App. 

G;  United  States  v.  Southern  Pacific  185;   Southern   R.   Co.   v.   Crockett. 

Co.,  Appendix  G;  Wabash  R.  Co.  v.  234  U.  S.  725;  34  Sup.  Ct.  897;  58 

United  States,  168  Fed.  1;  93  C.  C.  A.  L.  Ed.  1564. 

393;  United  States  v.  Southern  Pacific  ^  Section  243. 

Co.  177  Fed.  796;  Campbell  v.  Spo-  « Section  249. 

kane  &  I.  E.  R.  Co.  188  Fed.  516;  '  It  may  be  noted  that  in  a  number 

Southern  Ry.  Co.  v.  Snyder,  205  Fed.  of  the  more  recent  decisions  the  word 

868;  124  C.  C.  A.  60;  Felt  v.  Denver  "commercial"  is  occasionally  applied 


374  FEDERAL   SAFETY   APPLIANCE   ACT. 

§  254.     Temporary    suspension    of    tra:isportation.— The 

temporary  suspension  of  the  transportation  of  a  oar  does 
not  take  it  out  of  the  statute.  "Whether  that  [the  ultimate 
destination]  was  nearby  or  remote  is  not  material,  because 
the  shipment  had  originated  in  another  state  and  was  al- 
ready impressed  with  the  character  of  interstate  traffic, 
which  w^ould  follow  it  at  least  until  the  actual  transit 
ceased. ' '  ^^ 

§  255.     Permitting  cars  to  be  hauled  over  its  lines. — It  is 

immaterial  not  only  what  company  owns  the  ears  but  it  is 
also  immaterial  what  company  hauls  so  far  as  the  company 
owning  the  line  over  which  they  are  hauled  commits  an  of- 
fense. ]\Ierely  permitting  cars  improperly  equipped  to  be 
hauled  by  another  company  over  its  line  of  railroad  is  an 
offense  in  the  company  owning  the  railroad  and  permitting 
the  hauling  to  be  done.  "It  does  not  matter  whether  the 
defendant  was  the  owner  or  not,  because  the  statute  pro- 
hibits the  use  on  the  line  of  the  road  or  the  permitting  to 
be  hauled  on  the  line  of  the  roiad,  any  of  these  cars  not 
equipped  as  the  statute  provides.  So  that  if  they  permitted 
to  be  hauled  or  used  on  their  roads  any  such  cars,  even 
though  they  belonged  to  other  companies,  they  would  offend 
against  this  provision  of  the  statute.  "^"^ 

to  the  cars  drawn  in  question  in  the  ^^  Crawford  v.  New  York,  etc.,  R. 
cases  wherein  such  decisions  are  ren-  Co.  10  Am.  &  Eng.  Neg.  Cas.  166; 
dered,  as  "commercial  use."  Whether  United  States  v.  Chicago,  M.  &  St. 
or  not  the  courts  will  seize  upon  the  P.  Ry.  Co.  149  Fed.  486.  The  re- 
word "commercial"  and  apply  it  in  ceiving  company  must  ascertain  at 
an  interpretation  of  the  word  "used"  its  peril  that  each  car  it  receives  from 
is  not  to  be  foretold.  Touching  the  another  railroad  company  is  properly 
use  of  the  word  "commercial,"  see  equipped  with  safety  appliances. 
Southern  Ry.  Co.  v.  Snyder,  187  Fed.  United  States  v.  Chicago,  etc.,  R.  Co. 
492;  Chicago  &  N.  W.  Ry.  Co.  v.  162  Fed.  Rep.  775;  Devine  v.  Chicago 
United  States,  168  Fed.  236;  United  &  C.  R.  Co.  259  111.  449;  102  N.  E.  803, 
States  V.  Southern  Pacific  Co.,  169  reversing  174  111.  App.  324  (receiving 
Fed.  407.  interstate    cars    at    the    gates    of    a 

Where  a  railroad  was  engaged  in  foundry    and    transporting    them    to 

interstate  commerce   and   con.stantly  their    proper    place    in    the    yard); 

used  an  engine  in  the  regular  course  United  States  v.  Southern  Pac.  Co. 

of  its  interstate  business,  it  was  held  (.see    Appendix    G;    167    Fed.    699). 

that  the  Safety  Appliance  Act  applied  What   is   the   receipt   of   a   car,   see 

to   it.      Daly   v.    Illinois   Central   R.  Chicago,  etc.,  R.  Co.  v.  United  States, 

Co.  170  III.  App.  185.  165  Fed.  Rep.  423;  United  States  v. 

"  Chicago,  etc.,  Ry.  Co.  v.  Voelker,  Union  Stock  Yards  &  T.  Co.  192  Fed. 

129  Fed.  Rep.  522;  65  C.  C.  A.  65;  330. 

70  L.  R.  A.  264;  Chicago,  etc.,  R.  Co.  Section   2   makes   it   unlawful   for 

V.  United  States,  165  Fed.  Rep.  423.  a  railroad  company  to  "haul  or  per- 


USE   IN  INTERSTATE  TRAFFIC.  375 

§  256.  Defendant  hauling  car  over  another  company's 
line  of  railway. — The  statute  makes  it  an  offense  for  any 
railway  company  to  run  or  haul  or  permit  to  be  hauled  or 
used  "on  its  line"  any  ear  in  violation  of  its  provisions; 
and  the  question  has  been  presented  whether  an  interstate 
commerce  railway  company  hauling  its  train  of  cars  over 
another  company's  line  of  railroad  track  incurred  the  pen- 
alty of  the  statute.  In  one  case  the  charge  was  that  the 
defendant  hauled  a  defective  car  "over  its  line  of  railroad" 
from  one  place  in  New  Jersey  to  another  in  Pennsylvania. 
The  defendant  had  an  agreement  with  another  railroad 
company  by  which  it  was  enabled  to  haul  its  trains  over 
such  other  company's  tracks  between  the  two  points  desig- 
nated, but  subject  to  the  rules  of  such  other  company.  The 
defendant  was  held  liable,  the  court  saying :  ' '  The  fact  that 
in  conducting  its  train  over  these  tracks  the  defendant 
company  did  so,  subject  to  such  rules  and  regulations  of 
the  other  company  as  were  necessary  for  the  safe  and 
convenient  conduct  of  its  business,  in  nowise  militates 
against  the  proposition  that  the  defendant  company  had  a 
legal  right  to  the  use  of  these  tracks,  and  that  during  such 
use  they  were  properly  the  line  of  the  defendant  company, 
within  the  meaning  of  the  'Safety  Appliance  Act.'  It  was 
therefore  in  violation  of  the  act  that  it  allowed  the  car  in 
question  to  be  hauled  in  its  own  train,  in  the  control  of  its 
own  employees,  over  a  line  upon  which  it  had  a  legal  right 
to  conduct  its  interstate  traffic.  Such  contracts  are  not 
unusual,  since  we  find  cases  in  the  books  arising  out  of 
litigation  concerning  such  agreements.  The  fact,  if  it  be  a 
fact,  that  in  this  case  the  inspection  of  the  cars  was  made 
by  the  servants  of  the  Central  Railroad  of  New  Jersey,  can- 
not relieve  the  defendant  from  the  liability  imposed  by  the 

mit  to  be  hauled  or  used"  a  defective  although   the  case  was  reversed   by 

car  "on  its  line."    St.  Louis,  S.  &  F.  the    Supreme    Court.      Delk    v.    St. 

R.   Co.   V.   Delk,   158   Fed.   931;   86  Louis,  S.  &  F.  R.  Co.  220  U.  S.  580; 

C.  C.  A.  95;    14  A.  &  E.  Ann.  Cas.  31  Sup.  Ct.  617;  55  L.  Ed.  590. 
233.      This    point    was    approved, 


376  FEDERAL,   SAFETY   APPLIANCE  ACT. 

act.  It  can  not  by  contract  dispense  with  any  care  required 
of  it  by  law,  and  the  most  that  could  be  said  of  such  a 
situation  would  be  that  it  had  voluntarily  made  the  in- 
spectors of  the  other  company  its  own. ' '  ^^* 

§  257.  Freight  designed  for  another  state — Not  yet  left 
the  first  state. — It  matters  not  that  the  freight  designed  for 
another  state  has  not  yet  left  the  state  from  which  it  is  in- 
tended for  such  other  state,  if  it  has  been  placed  aboard  the 
cars  ready  for  transportation  to  such  other  state.  In  one  case 
the  following  language  was  used:  "It  has  been  proven  in 
this  case  *  *  *  that  both  of  the  cars  in  question  were 
carrying  traffic  consigned  from  a  point  in  one  state  to  a 
point  in  another  state.  This  makes  such  traffic  interstate 
commerce.  While  the  evidence  does  not  show  that  the  de- 
fendant hauled  the  car  across  the  state  line,  still  the  defend- 
ant is  engaged  in  interstate  traffic  no  matter  how  short  the 
movement,  if  the  traffic  hauled  is  in  course  of  movement 
from  a  point  in  one  state  to  a  point  in  another,  "^^ 

§  258.  Intrastate  traffic — Narrow  gauge  railroad  wholly 
within  state. — A  company  owned  and  operated  a  narrow 
gauge  road  that  lay  wholly  within  the  state  of  Ohio,  and  was 
about  one  hundred  miles  long,  terminating  at  Bellaire  on 
the  Ohio  river.  At  Bellaire  it  connected  with  the  Baltimore 
&  Ohio  Railroad  in  the  sense  that  it  received  from  that 
railroad  freight  from  other  states  marked  for  points  on  its 
line,  and  delivered  to  it  freight  from  points  on  its  own  line 
marked   for  other  states   in  the   following  manner:     There 

"  United  States  v.  Central  of  Ga.  phase   of   the   question   discussed   in 

Ry.  Co.  157  Fed.  Rep.  893;  United  this  section  is  now  academic  in  view 

States  V.  Northern,  etc.,  Ry.  Co.  144  of  the  recent  decision  of  the  United 

Fed.    Rep.    801;    United    States    v.  States  Supreme  Court.     See  section 

St.  Louis,  etc.,  R.  Co.  1.54  Fed.  Rep.  24.3. 

.010.     Lucas  V.  Peoria  &  E.  Ry.  Co.  "•  Philadelphia  &   R.   Ry.  Co.   v. 

171  111.  App.  1.     It  must  be  apparent  United  States,  191  Fed.  1;  111  C.  C. 

to    the    reader    that    the    particular  A.  001. 


USE  IN   INTERSTATE  TRAFFIC.  377 

was  no  interchange  of  cars  because  of  the  different  gauges 
of  the  two  roads,  the  defendant's  ears  being  used  only  on 
its  own  road.  A  transfer  track  ran  from  its  terminal  sta- 
tion to  the  Baltimore  and  Ohio  road,  so  the  freight  cars  of 
the  two  roads  could  be  placed  alongside  of  adjoining  plat- 
form, and  the  transfer  of  freight  made  from  the  cars  of  one 
road  to  those  of  the  other.  Neither  road  issued  through 
bills  of  lading  for  the  freight  transferred ;  and  no  through 
rate  for  freight  was  fixed  by  mutual  arrangement,  nor  was 
there  a  division  of  freight  charges  for  through  freight  car- 
ried by  both  roads.  Freight  transported  to  Bellaire  by  the 
narrow  gauge  road  and  marked  for  a  point  in  another  state 
was  delivered  to  the  agents  of  the  Baltimore  and  Ohio  with 
an  expense  or  transfer  bill  that  stated  the  original  point  of 
the  shipment,  the  consignee  and  place  of  consignment,  and 
the  freight  charges  of  the  delivering  road.  The  usual  way- 
bills accompanied  this  traffic.  On  taking  charge  of  freight 
thus  delivered  to  it,  the  Baltimore  and  Ohio  assumed  the 
payment  of  the  narrow  gauge  road's  freight  charges,  and 
collected  the  entire  charges  of  the  transportation  on  deliver- 
ing the  freight  at  its  destination.  Incoming  freight  was 
handled  in  the  same  manner,  except  that  the  agents  of  the 
Baltimore  and  Ohio  at  Bellaire  would  bring  the  traffic  to 
and  put  it  in  cars  of  the  narrow  gauge  road.  When  it 
received  freight  with  the  expense  or  transfer  bill,  the  nar- 
row gauge  road  w^ould  assume  the  charges  of  the  other  road, 
and  collect  the  entire  freight  charges  at  its  destination. 
There  were  weekly  settlements  betw^een  the  two  roads  of 
freight  charges,  and  balances  paid  when  found  due ;  but  each 
road  became  responsible  for  the  freight  charges  of  the  other, 
whether  the  consignee  paid  them  or  not.  Such  transfers  oc- 
curred daily,  and  each  company's  charges  were  in  accord- 
ance with  its  own  rates.  The  acts  upon  which  the  suit  was 
based  were  hauling  in  a  car  not  equipped  as  the  act  of 
Congress  required,  cases  of  eggs  destined  for  a  point  in 
Pennsylvania  and  delivered  at  Bellaire  to  the  Baltimore  and 


378  FEDERAL   SAFETY  APPLIANCE   ACT. 

Ohio  for  shipment  to  the  point  of  destination ;  and  also  the 
hauling  of  certain  freight  in  ears  not  properly  equipped 
from  Bellaire  to  a  station  over  the  narrow  gauge  road,  which 
freight  had  been  shipped  from  Philadelphia,  in  Pennsyl- 
vania, and  consigned  to  a  point  on  the  latter  road.  It  did 
not  appear  there  was  any  through  bill  of  lading;  but  the 
form  of  the  bill  of  lading  used  by  the  defendant,  the  narrow 
gauge  road,  provided  as  follows:  "This  blank  must  in  no 
case  be  tilled  with  the  name  of  any  station  or  place  beyond 
the  line  of  this  company's  road."  Upon  these  facts  it  was 
held  that  the  car  carrying  the  eggs  and  those  carrying  the 
freight  from  Philadelphia  were  not  used  in  interstate  com- 
merce, and  so  need  not  be  equipped  with  automatic  brakes.'^ 

§  259.  Intrastate  railroad  engaged  in  carrying  interstate 
commerce  articles.— This  statute  has  been  held  to  applj^  to  a 
railroad  company  operating  wholly  within  a  state,  inde- 
pendently of  all  other  carriers,  but  which  receives  and  trans- 
ports to  their  destination  articles,  in  a  continuous  trip, 
brought  from  another  state  Thus,  a  narrow  gauge  railroad 
was  operated  wholly  within  the  state  of  Colorado.  A  ship- 
ment of  hardware  was  carried  by  an  interstate  wide  gauge 
railroad  from  Omaha,  Nebraska,  to  a  station  on  this  narrow 
gauge  road  and  delivered  to  it  for  carriage  to  a  station  on 
the  main  line  a  few  miles  farther  on,  to  which  place  it 
had  been  consigned  from  Omaha.  This  shipment  was  not 
carried  upon  a  through  h\\]  of  lading,  but  it  was  consigned 

38  United    States    v.    Geddes,    131  road  company  upon  exactly  similar 

Fed.    Rep.    452;   65   C.    C.    A.    320.  facts.       United    States    v.     Geddes, 

See  also  Belt  Ry.  Co.  v.  United  States,  ISO  Fed.  480.    In  this  case  the  court 

168  Fed.  542;  93  C.  C.  A.  GG6;  United  distinfiuishes  it  from  the  case  of  Cin- 

States   V.   Chicago,   etc.,   R.   Co.   81  cinnati,   N.  O.  &  T.   P.  Ry.  Co.  v. 

Fed.  Rep.  783,  and  Interstate  Com-  Inter.  Com.  Commission,   162  U.  S. 

merce  Commission  v.   Bellaire,   etc.,  193;  16  Sup.  Ct.  700;  40  L.  Ed.  935. 

R.  Co.  77  Fed.  Rep.  942.    At  a  latter  The  case  of  United  States  v.  Ged- 

date  the  same  result  was  reached  in  des,  supra,   is  discussed  and  denied 

another  case  against  the  same  rail-  in  section  260. 


USE  IN  INTERSTATE  TRAFFIC.  379 

and  carried  upon  a  continuous  passage  from  the  point  of 
origin  to  its  destination  at  the  station  of  the  narrow  gauge. 
The  shipment  was  re-billed  by  the  narrow  gauge  road  from 
the  point  it  received  it  to  its  place  of  destination  on  its  line, 
and  it  advanced  the  freight  charges  for  the  previous 
transportation,  collecting  them  of  the  consignee  on  deliver- 
ing the  goods.  The  broad  gauge  and  narrow  gauge  roads,  at 
their  point  of  contact,  had  a  platform  for  their  common  use, 
for  the  purpose  of  receiving  goods  on  one  side  of  it  and 
loading  on  the  other,  in  this  way  making  an  exchange  of 
goods  carried  by  them  respectively.  It  was  held  that  this 
narrow  gauge  road  was  subject  to  the  federal  statute  and 
must  equip  its  cars  with  automatic  brakes.  Judge  Sanborn 
relied  upon  the  celebrated  case  of  The  Daniel  Ball.^^  That 
was  a  case  to  recover  a  penalty  in  a  suit  brought  by  the 
United  States  for  navigating  Grand  river  in  the  sta,te  of 
Michigan  without  a  license.  The  defense  was  that  the  boat 
was  not  engaged  in  trade  or  commerce  between  two  or  more 
states,  but  was  employed  solely  in  intrastate  commerce.  It 
was  agreed  that  the  vessel  was  operated  entirely  within  the 
state  of  Michigan  between  Grand  Rapids  and  Grand  Plaven, 
and  that  it  did  not  run  in  connection  with,  or  in  continua- 
tion of,  any  line  of  steamers  or  vessels  on  the  lake,  or  any 
line  of  railway  in  the  state,  but  that  it  was  a  common  carrier 
between  these  two  cities,  and  "that  some  of  the  goods  that 
she  shipped  to  Grand  Rapids  and  carried  to  Grand  Haven 
were  destined  and  marked  for  places  in  other  states  than 
Michigan,  and  that  some  of  the  goods  which  she  shipped  at 
Grand  Haven  came  from  other  states  and  were  destined  for 
places  within  that  state."  Judge  Sanborn,  from  this  ques- 
tion, reached  the  conclusion  that  "the  power  to  regulate 
interstate  commerce  is  as  complete  upon  the  land  as  upon  the 
navigable  waters  of  the  nation,  and  congressional  regulation 

39  10  Wall.  557;    19  L.  Ed.  9m;       reversing  Brown,  Admr.,  Ca3.  193; 
Fed.  Cas.  No.   3564. 


380  FEDERAL   SAFETY   APPLIANCE   ACT. 

upon  the  former  must  be  interpreted  by  the  same  rules  and 
enforced  with  the  same  efficiency  as  like  regulations  upon 
the  latter.*°  The  plain  and  specific  declaration  of  the  acts 
of  Congress  before  us,  which  have  been  recited,*^  and  the 
familiar  rule  that  where  the  terms  of  a  statute  are  unam- 
biguous and  their  meaning  is  plain  there  is  no  room  for 
construction,  and  the  apt  and  controlling  opinion  of  the  Su- 
preme Court  in  the  Daniel  Ball  case  ■*-  which  decided,  in  a 
case  strictly  analogous,  the  material  legal  questions  in  this 
case,  urgently  persuade  that  the  Northwestern  Company*^  was 
a  common  carrier  engaged  in  interstate  commerce  by  railroad 
within  the  meaning  of  the  Safety  Appliance  Acts,  and  was 
thereby  required  to  equip  its  cars  with  automatic  couplers."  ** 
Nor  can  a  railroad  urge  that  it  hauled  the  car  the  distance 
it  did  in  order  to  reach  its  general  repair  shops,  if  it  could 
have  repaired  the  car  at  nearby  points.*^ 

§  260.  United  States  against  Geddes  denied.— In  the  case 
of   the   United    States   against   Colorado   and    Northwestern 

40  Citing  In  re  Debs,  158  U.  S.  nation  from  San  Jose  to  Oareaga. 
564;  15  Sup.  Ct.  Rep.  500;  39  L.  It  was  held  that  the  traffic  being 
Ed.  1092.  carried  from  Sa,n  Jose  to  Careaga 

41  Safety  Appliance  Act,  p.  264.  was  interstate.     United   States  v. 

42  10  Wall.  557.  Pacific  Ry.  Co.   (see  Appendix  G). 

43  The  narrow  gauge  railroad.  The    statute    applies    to    a    rail- 

44  United  States  v.  Colorado,  etc.,  road  in  South  Carolina  author- 
R.  Co.  157  Fed.  Rep.  321;  United  ized  by  its  special  charter  to 
States  V.  Colorado,  etc.,  R.  Co.  "farm  out"  the  rights  of  transpor- 
157  Fed.  Rep.  342.  tation.     Harden  v.  North  Carolina 

45  United  States  v.  Chicago,  etc.,  R.  Co.  129  N.  C.  354 :  40  S.  E. 
Ry.   Co.    149   Fed.   Rep.   486.      See  Rep.  184;  55  L.  R.  A.  784. 

also  Pacific  Coast  Ry.  Co.  v.  United  Under    tlie    Massachusetts    stat- 

States,  173  Fed.  448.  ute,    a   car   en   route   to   a    rej>air 

A  shipment  from  a  point  with-  shop    does    not    come    within    the 

out    the    State   of    California    was  statute    prohibiting    the    "moving 

consigned    to    San    Jose    in    that  of    traffic"    in    ears    not   equipped 

state.    Before  the  shipment  reached  with    automatic    couplers.      Taylor 

the  state,  and  wliile  in  transit,  the  v.    Boston,   etc.,   R.   Co.    188   Mass. 

consignor,   by   agreement  with  one  390;    74  N.  E.  Rep.  591. 
of  the  carriers,  changed  the  desli- 


USE  IN   INTERSTATE  TRAFFIC.  33^ 

Eiailroad  Company/"  Judge  Sanborn  of  the  Circuit  Court 
of  Appeals  of  the  Eighth  Circuit  examines  at  length  the  case 
of  the  United  States  against  Geddes  *'  of  the  Circuit  Court 
of  Appeals  of  the  Sixth  Circuit  and  declines  to  follow  it. 
We  set  out  the  review  of  that  case  to  the  full  extent  as  made 
by  Judge  Sanborn,  viz :  ' '  The  argument  of  counsel  for  the 
company,  in  support  of  the  construction  adopted  by  the 
Court  of  Appeals  of  the  Sixth  Circuit,  is  (1)  that  the  part 
of  the  first  section  of  the  'interstate  commerce  act'  quoted 
above,  constituted  a  new  and  exclusive  definition  of  carriers 
engaged  in  interstate  commerce;  (2)  that  Mr.  Justice  Shiras 
in  Texas  and  Pacific  Ry.  Co.  v.  Interstate  Commerce  Com- 
mission,*^ in  speaking  of  this  act,  said:  'It  would  be  diffi- 
cult to  use  language  more  unmistakably  signifying  that 
Congress  had  in  view  the  whole  field  of  commerce  (except- 
ing that  wholly  within  a  state)  as  well  that  between  the 
states  and  territories  as  that  going  to  or  coming  from  foreign 
countries';  (3)  that  if  that  statement  was  accurate,  then  to 
be  a  'common  carrier  engaged  in  interstate  commerce  by 
railroad'  within  the  meaning  of  the  Safety  Appliance  Act  of 
1893,  which  was  enacted  six  years  later,  a  railroad  must  be 
'engaged  in  the  transportation  of  passengers  or  property 
wholly  by  railroad  or  partly  by  railroad  and  partly  by 
water  when  both  are  used,  under  a  common  control,  man- 
agement or  arrangement  for  a  continuous  carriage  or  ship- 
ment' from  one  state  to  another;  (4)  that  Congress  sought 
to  regulate  interstate  commerce  by  each  act  and  that  having 
defined  interstate  commerce  m  the  first  act,  the  words  'any 
common  carrier  engaged  in  interstate  commerce'  in  the  sub- 
sequent Safety  Appliance  Acts  were  restricted  to  those  car- 
riers specified  in  that  definition,  and  included  only  such  as 
were  so  engaged  with  others  under  a  common  control,  man- 

"157   Fed.  Rep.  321.  1G2  U.  S.  197,  at  p.  212;   16  Sup. 

"131    Fed.   Rep.   452;    G5   C.   C.  Ct.    66G,    at    p.    672     (40    L.    Ed. 

A.  320.  040 )  ;   reversing  4  Inter.  St.  Com. 

« Texas  &  Pacific  Ry.  Co.  v.  In-  Rep.    408;    6    C.    C.    A.    653;    20 

terstate     Commerce      Commission,  U.   S.  App.    1 ;    57   Fed.   Rep.   948. 


382  FEDERAL   SAFETY  APPLIANCE  ACT. 

agement  or  arrangement  for  a  continuous  passage  or 
shipment;  and  (5)  that  any  other  construction  would  compel 
railroad  companies  operating  in  single  states,  to  which  arti- 
cles of  interstate  commerce  that  they  might  not  lawfully 
refuse  to  carry  were  tendered  for  transportation,  to  comply 
with  the  Safet}"  Appliance  Acts,  and  would  thereby  draw 
all  commerce  under  national  regulation.  A  careful  study 
of  this  argument  in  all  its  branches  has  brought  to  mind 
some  reasons  why  it  is  not  convincing,  which  will  be  briefly 
stated.  The  major  premise  of  the  argument  is  that  Con- 
gress by  the  act  of  1887,  made  an  authoritative  definition  of 
carriers  engaged  in  interstate  commerce  by  railroad  and 
partly  by  railroad  and  partly  by  water,  to  which  subsequent 
legislation  and  decision  is  subject;  that  after  the  passage 
of  that  act  no  carrier  by  railroad  and  no  carrier  partly  by 
railroad  and  partly  by  Avater,  who  conducted  within  a  single 
state  a  part  of  the  continuous  transportation  of  articles  of 
interstate  commerce,  was  engaged  in  that  commerce,  unless 
it  conducted  that  carriage  with  some  other  carrier  under  a 
common  control,  management  or  arrangement  for  a  con- 
tinuous carriage  or  shipment.  Is  this  the  true  construction 
and  effect  of  the  first  section  of  the  interstate  commerce  act 
of  1887  ?  When  Congress  passed  that  statute,  conclusive  de- 
cisions and  universal  assent  had  established  the  rule  of  law 
that  common  carriers  engaged  entirely  within  a  single  state 
in  the  transportation  of  articles  of  interstate  commerce  in- 
cluded two  classes:  (a)  Those  who  conducted  that  trans- 
portation with  another  or  other  carriers  under  a  common 
control,  management  or  arrangement  for  a  continuous  car- 
riage or  shipment;  and  (ft)  those  who  conducted  such  trans- 
portation alone,  or  with  other  carriers  without  any  common 
control,  management  or  arrangement  for  such  a  carriage  or 
shipment.  The  (piestion  whether  or  not  carriers  of  the  sec- 
ond class  were  engaged  in  interstate  commerce  was  settled."*^ 
It  was  not  acute,  debatable  or  open,  and  the  purpose  of  the 

«The     Daniel     Ball,     10     Wall.       Brown,  Admr.,  Cas.  193;  Fed.  Cas, 
55      5(J5;   1!)  L.  Kil.  !»!)!»;  rovershig       No.   3,564. 


USE  IN  INTERSTATE  TRAFFIC. 


383 


act  of  1887  was  not  to  answer  it.  If  it  had  been  the  inten- 
tion of  Congress  and  the  meaning  of  that  act  that  the 
established  rule  of  law  upon  that  question  should  be  abro- 
gated, that  a  new  definition  of  carriers  engaged  in  inter- 
state commerce  should  be  made  w^hich  would  imperatively 
exclude  the  second  class  from  interstate  commerce,  it  is  rea- 
sonable to  believe  that  the  law  making  body  would  have 
made  this  purpose  to  cause  so  radical  a  departure  from  the 
law  of  the  land  clear  and  indisputable  by  a  direct  declara- 
tion and  enactment  Avhich  could  easily  have  been  written  in 
a  few  lines,  that  henceforth  carriers  engaged  in  interstate 
commerce  by  railroad  should  include  those  of  the  first  class 
only,  or  that  they  should  exclude  those  of  the  secund  class. 
But  the  act  contains  no  such  declaration  or  provision.  On 
the  other  hand,  in  the  face  of  the  established  rule  of  law 
that  carriers  by  railroad  engaged  in  interstate  commerce 
consisted  of  both  classes,  the  Congress  enacted  that  'the  pro- 
visions of  this  act  shall  apply  to'  the  members  of  the  first 
class,  and  there  it  stopped  and  enacted  nothing  more  perti- 
nent to  this  issue.  The  existence  of  the  two  well  known 
classes  of  carriers  engaged  in  interstate  commerce,  the  ab- 
sence of  any  declaration  or  enactment  that  the  rule  which 
included  the  members  of  both  classes  among  such  carriers 
should  be  abrogated  or  in  any  way  modified,  and  the  simple 
declaration  of  the  act  that  its  provisions  should  apply  to  the 
members  of  the  first  class  without  more  upon  this  subject, 
render  it  difficult  to  believe  that  the  purpose  or  effect  of  the 
first  section  of  this  statute  was  any  other  than  to  select  out 
of  all  the  carriers  engaged  in  interstate  commerce  by  rail- 
road or  partly  by  railroad  and  partly  by  water,  and  to  speci- 
fy, as  its  clear  and  certain  w^ords  purport  to  do,  the  class 
of  those  carriers  to  which  its  provisions  apply.  The 
remark  of  i\Ir.  Justice  Shiras  in  Texas  and  Pacific  Ry.  Co. 
V.  Interstate  Commerce  Commission,^"  with  reference  to  the 
interstate  commerce  act.  that  'It  would  be  difficult  to  use 

»»162    U.    S.    212;    16    Sup.    Ct.    672    (40  L.  Ed.  940). 


384  FEDERAL   SAFETY  APPLIANCE   ACT. 

language  more  unmistakably  signifying  that  Congress  had 
in  view  the  whole  field  of  commerce,  excepting  commerce 
wholly  within  a  state,'  is  not  persuasive  upon  the  legal  issue 
before  us  (a)  because  this  question  Avas  not  presented,  dis- 
cussed, or  decided  in  that  case,  wherein  the  court  was  con- 
sidering only  the  relation  of  the  circumstances,  conditions 
and  rates  of  transportation  of  foreign  commerce  to  the  cir- 
cumstances, conditions  and  rates  of  transportation  of  inter- 
state commerce  under  the  act  of  1887,  and  expressions  in 
the  opinion  of  courts  are  not  authoritative  beyond  the  ques- 
tions which  they  were  considering  and  deciding  when  they 
used  them.^^  (&)  Because  the  statement  that  Congress  had 
in  view  the  whole  field  of  interstate  commerce  when  it  passed 
this  act  is  far  from  an  assertion,  and  could  never  have  been 
intended  to  be  a  declaration  that  Congress  had  regulated,  or 
had  intended  by  that  act  to  regulate,  every  carrier  engaged 
in  interstate  commerce  within  its  regulating  power,  for  that 
was  obvioush^  not  the  fact.  It  did  not  regulate  and  evi- 
dently did  not  intend  to  regulate  carriers  engaged  in  the 
transportation  of  subjects  of  interstate  commerce  by  stage 
coach,  by  wagon,  entirely  by  water,  or  such  carriers  partly 
by  water  and  partly  by  railroad,  when  they  were  not  oper- 
ating with  other  carriers  under  a  common  control,  manage- 
ment or  arrangement;  (c)  because  the  statute  expressly 
declared  that  the  provisions  of  the  act  should  apply  to  the 
members  of  a  specific  class  of  carriers  engaged  in  interstate 
commerce,  and  omitted,  and  thereby  excluded  from  subjec- 
tion to  its  provisions,  those  of  other  classes.  The  amenda- 
tory act  of  June  29,  1906,^-  is  a  demonstration  that  the 
original  act  was  not  intended  to  and  did  not  regulate  all 
common  carriers  engaged  in  interstate  commerce  by  railroad 
within  the  power  of  Congress,  for  the  amendment  applies 
the  provisions  of  the  act  to  common  carriers  engaged  in  in- 
terstate commerce  wholly  ])y  railroad  who  are  exempt  from 

oi  Cohens  v.   Virginia,   0   Wheat-  "34   Stat.    584,   c.    3501,    See.    1 

on,  204,  299;   5  L.  Ed.  257.  (U.    S.   Conip.   St.    Supp.    1907,   p. 

892). 


USE  IN  INTERSTATE  TRAFFIC.  335 

any  common  control,  management  or  arrangement  with  other 
carriers,  and  applies  its  provisions  to  nuiny  other  carriers 
not  subject  to  the  terms  of  the  original  act.  The  rule  in 
pari  materia,  which  counsel  for  the  company  invoke,  the  nile 
that  the  similar  terms  of  statutes  enacted  for  like  purposes 
should  receive  like  interpretations,  is  inapplicable  to  the  in- 
terstate commerce  act  and  the  Safety  Appliance  Acts,  be- 
cause the  provision  of  the  latter  relative  to  the  question 
before  us,  is  plain  and  explicit,  and  a  statute  falls  under 
that  rule  only  when  its  terms  are  ambiguous  or  its  signifi- 
cance is  doubtful,'^^  and  because  the  evils  to  be  remedied,  the 
objects  to  be  accomplished,  and  the  enactments  requisite  to 
attain  them  are  radically  different.  It  is  true  that  each  act 
was  a  regulation  of  interstate  commerce,  but  so  are  the  Sher- 
man anti-trust  act,  the  employers'  liability  act,  the  vari- 
ous acts  regulating  the  inspection  of  steamboats,  and  the 
navigation  of  the  inland  rivers,  lakes  and  bays,  and  many 
other  acts,  too  numerous  to  mention  or  review.  It  does  not 
follow  from  the  facts  that  the  interstate  commerce  act  was 
first  passed,  and  that  it  regulates  commerce  among  the  states, 
and  declares  that  its  provisrons  shall  apply  to  the  mem- 
bers of  a  certain  class  of  carriers  engaged  therein,  that  the 
Sherman  anti-trust  act,  the  Safety  Appliance  Acts,  and  other 
subsequent  acts  regulating  commerce  apply  to  the  members 
of  that  class  only,  in  the  face  of  the  positive  declarations 
of  the  later  acts  that  they  shall  govern  other  parties  and 
Other  -branches  of  commerce.  The  subject  of  the  first  act 
was  the  contracts,  the  rates  of  transportation  of  articles  of 
interstate  commerce ;  the  subject  of  the  Safety  Appliance 
Acts  was  the  construction  of  the  vehicles,  the  cars,  and 
engines  which  carry  that  commerce.  The  evils  the  former 
was  passed  t'o  remedy  were  discrimination  and  favoritism  in 
contracts  ami  rates  of  carriage;  the  evils  the  latter  was 
enacted  to  diminish  were  injuries  to  the  employes  of  car- 
riers by  the  us©  of  dangerous  cars  and  engines.    The  remedy 

^'Endlich    011    Interpretation    of    Statutes,  Sec.  5S    p.  67. 


38g  FEDERAL   SAFETY   APPLIANCE   ACT. 

for  the  mischiefs  which  induced  the  passage  of  the  former 
act  was  equality  of  contracts  and  rates  of  transportation ; 
the  remedy  for  the  evils  at  which  the  latter  act  was  leveled 
was  the  equipment  of  cars  and  engines  with  automatic 
couplers.  Neither  in  their  subjects,  in  the  mischiefs  they 
were  enacted  to  remove,  in  the  remedies  required,  nor  in  tJie 
remedies  provided,  do  these  acts  relate  to  similar  matters, 
and  the  rule  that  the  words  or  terms  of  acts  in  pari  materia 
should  have  similar  interpretations  ought  not  to  govern  their 
construction.  The  contention  that  if  a  railroad  company 
conducting  the  transportation  of  articles  of  interstate  com- 
merce entirely  within  a  single  state  and  independent  of  other 
carriers,  is  held  to  be  subject  to  the  Safety  Appliance  Acts, 
it  must  receive  articles  of  interstate  commerce  for  trans- 
portation, and  all  carriage,  both  interstate  and  intrastate, 
will  thus  become  subject  to  national  regulation,  neither  ter- 
rifies nor  convinces.  The  constitution  reserved  to  the  nation 
the  unlimited  power  to  regulate  interstate  and  foreign  com- 
merce, and  if  that  power  cannot  be  effectually  exercised 
without  affecting  intrastate  commerce,  then  Congress  may 
undoubtedly  in  that  sense  regulate  intrastate  commerce  so 
far  as  necessary,  in  order  to  regulate  interstate  commerce 
fully  and  effectually.  The  peaple  of  the  United  States 
carved  out  of  their  sovereign  power,  reserved  from  the  states, 
and  granted  to  the  Congress  of  the  United  States  exclusive 
and  plenary  power  to  regul.ate  eom-merce  among  the  states 
and  with  foreign  nations.  That  pjower  is  not  subordinate, 
but  it  is  paramount  to  all  the  powers  of  the  states.  If  its 
independent  and  lawful  exercise  of  this  congressional  power 
and  the  attempted  exercise  by  a  state  of  any  of  its  powers 
impinge  or  conflict,  the  former  must  prevail  and  the  latter 
must  give  way.  The  constitution  and  the  acts  of  Congress 
passed  in  pursuance  thereof  are  th'e  supreme  law  of  the  land. 
'That  which  is  not  supreme  must  yield  to  that  which  is  su- 
prcnic' ■'■'     It  was  the  evident  and  declared  purpose  of  the 

"Brown  v.   Maryland,  12  Whoat.       v.    O^don,    0    Whoat.    1,    200,   210; 
419,  448;    6  L.  Ed.   078;    Gibbons       6  L.  Ed.  23;   Gulf,  Colorado,  etc.. 


USE  IN  INTERSTATE  TRAFFIC.  387 

Safety  Appliance  Acts  to  require  every  common  carrier  en- 
gaged in  interstate  commerce,  and  hence  every  common  car- 
rier so  engaged  independently  in  a  single  state,  to  comply 
with  the  requirements  of  the  statute.  No  greater  ourden  is 
thereby  imposed  upon  a  company  engaged  in  such  commerce 
within  one  state  than  upon  one  so  engaged  in  more  than  one 
state.  There  was  as  urgent  a  demand,  and  as  much  reason 
and  necessity,  for  the  protection  of  the  lives  a.nd  limbs  of 
the  servants  of  railroad  companies  operating  in  a  single 
state,  as  of  preserving  the  lives  and  limbs  of  the  servants  of 
such  companies  operating  across  state  lines.  The  Safety 
Appliance  Acts  might  be  practically  evaded  and  thus  ren- 
dered futile  if  companies  independently  transporting  articles 
of  interstate  commerce  in  single  states  could  exempt  them- 
selves from  their  provisions  by  conducting  all  such  transpor- 
tation, except  that  across  the  imaginary  lines  which  divide 
the  states,  by  means  of  corporations  operating  in  single  states 
only,  aud  finally  the  objection  here  under  consideration  was 
determined  to  be  untenable  by  the  controlling  opinion  of  the 
Supreme  Court  in  the  Daniel  Ball  case,^^  where  it  was  equally 
available,  was  considered  and  overruled,  for  Congress  has  the 

Ry.   Co.  V.  Hefley,    158  U.   S.   98;  125  U.  S.  4G5,  479,  480,  481.  484, 

15   Sup.   Ct.   802;    39  L.   Ed.  910;  485,  488,  489,  490,  491,  507,  508; 

Int.  State  Commerce  Com.  v.  De-  8   Sup.   Ct.    689,   1062;    31   L.   Ed. 

troit,  etc.,  Ry.  Co.  167  U.  S.  633,  700;  Welton  v.  Missouri,  91  U.  S. 

642;    17   Sup.   Ct.  986;    42   L.   Ed.  275,  280;   23  L.  Ed.  347;   Lyng  v. 

306;    State   Freight  Tax   Case,    15  Michigan,   135  U.   S.  161,   166;    10 

Wall.    232,    275,    280;    21    L.    Ed.  Sup.  Ct.  725;  34  L.  Ed.  150;  Nor- 

146;    Pensacola   Telegraph    Co.    v.  folk,  etc.,  Ry.  Co.  v.  Pennsylvania, 

Western  Union  Telegraph  Co.,  96  136  U.   S.   114,   115,   118,   120;    10 

U.    S.    1,   8;    24   L.    Ed.    708;    Chy  Sup.    Ct.    958;     34    L.    Ed.    394; 

Lung   V.   Freerian,   92    U.   S.   275,  Crutcher   v.   Kentucky,   141   U.   S. 

280;    23    L.    Ed.   550;    Ry.   Co.   v.  47,  57,   58,  59;    11   Sup.  Ct.   851; 

Husen,  95  U.  S.  465,  471,  472,  473;  35   L.   Ed.   649;    Osborne   v.   Flor- 

24  L.  Ed.  527;  Hall  v.  De  Cuir,  95  ida,   164  U.   S.   650,  655;    17   Sup. 

U.   S.   485,   488-490.   497,   498-513;  Ct.  214;    41   L.  Ed.  586;    Caldwell 

U.  S.  485,488-490.497,408-513;  24  v.  North  Carolina,   187  U.  S.  622, 

L.   Ed.    547;    Cooper    Mfg.    Co.    v.  623;    23   Sup.  Ct.   229;    47  L.  Ed. 

Ferguson.  113  U.  S.  727,  736,  737;  336. 

5  Sup.  Ct.   739;   28  L.   Ed.   1137;  "10  Wall.  565;    19  L.  Ed.  999. 
Bowman  v.  Chicago,  etc.,  Ry.  Co. 


388  FEDERAL.   SAFETY   APPLIANCE   ACT. 

same  'fulness  of  control'  over  interstate  commerce  carried 
upon  railroads  and  other  artificial  highways  upon  the  land 
that  it  has  over  that  borne  upon  the  navigable  waters  of  the 
nation.'^''  Some  of  the  reasons  why  the  argument  of  counsel 
in  support  of  the  construction  of  these  acts  which  they  seek, 
has  not  proved  convincing,  have  now  been  stated.  There  are, 
however,  other  and  controlling  considerations  which  deter  us 
JVom  the  conclusion  they  urge.  Congress  enacted  that  'it 
shall  be  unlawful  for  any  common  carrier  engaged  in  inter- 
state commerce  by  railroad'  to  haul  any  car  on  its  line,  used 
in  moving  interstate  traffic,  unequipped  with  automatic 
couplers,  except  four-wheeled  cars  and  certain  logging  cars 
and  the  engines  which  draw  them.  The  construction  of  this 
enactment  sought  in  effect  amends  this  positive  declaration 
by  importing  into  it  the  exception  which  appears  in  italics 
below,  so  that  it  would  read,  'it  shall  be  unlawful  for  any 
common  carrier  engaged  in  interstate  commerce  by  railroad, 
*  *  *  except  a  common  carrier  engaged  in  interstate  com- 
merce hy  railroad  wholly  tvitkin  a  single  state  and  not  under 
a  common  control,  ^naiiagonent  or  arrangement  with  any 
other  carrier  for  a  continuous  carriage  or  shipment'  to  haul 
any  car  on  its  line  used  in  moving  interstate  traffic  un- 
equipped with  automatic  couplers,  except  four-wheeled  cars 
and  certain  logging  cars  and  the  engines  used  to  haul  them. 
But  where  the  Congress  makes  no  exception  from  the  clear 
and  certain  declaration  of  a  statute,  there  is  ordinarily  a 
presumption  that  it  intended  to  make  none.^^  By  so  much 
the  more  is  it  true  that  where  the  lawmaking  body  has  made 
exceptions  to  the  general  terms  of  an  act,  as  in  this  instance, 
the  presumption  is  that  it  intended  to  make  no  more.  Again, 
if  Congress  intended  to  make  this  exception,  it  was  a  secret 
intention  which  the  Safety  Appliance  Acts  not  only  failed  to 

'"In    re    Debs,    158    U.    S.    590,  Ed.   242;    Vance  v.  Vance,   108  U. 

5!)1;    15   Sup.   Ct.   900;    39   L.   Ed.  S.    514,  521;    2   8up.    Ct.   854;    27 

1092.  E.     Ed.     808;      Railway     Co.     v. 

"Mr-Tver    v.     En<r:in,    2    Wliei.l.  li'Sliears.    59    Ark.    237,    244;    27 

25,    29;    4    E.    Ed.    175:    liaiik    v.  S.   W.  2. 
Daltxjn,   9    How.   522,    528;    13   L. 


USE  tN  INTERSTATE  TRAFFIC.  339 

express,  but  which  their  terms  expressly  negatived  It  is  the 
intention  expressed,  or  necessarily^  implied,  in  the  law,  and 
that  alone,  to  which  courts  may  lawfully  give  effect.  They 
may  not  assume  or  presume  purposes  and  intentions  that  are 
neither  expressed  or  implied,  and  then  construe  into  the  law 
the  provisions  to  accomplish  these  assumed  intentions.  A 
secret  intention  of  the  lawmaking  body  cannot  be  legally  in- 
terpreted into  a  statute  which  is  plain  and  unambiguous,  and 
which  does  not  express  or  imply  it."^^  The  principal  reasons 
which  have  been  persuasive  in  the  determination  of  the  ques- 
tion in  hand  have  now  been  stated.  They  have  been  pre- 
sented at  considerable  length  in  deference  to  the  opinion  of 
the  Court  of  Appeals  of  the  Sixth  Circuit  in  the  Geddes  case, 
which  it  would  have  been  a  pleasure  to  follow,  if  the  proper 
result^  had  been  doubtful  in  our  opinion.  But  this  case  has 
been  presented  to  this  court  for  decision.  The  exercise  of  its 
independent  judgment  has  been  invoked,  and  it  may  not  be 
lawfu'lly  denied.  The  positive  and  explicit  declaration  of  the 
first  section  of  the  Safety  Appliance  Act  of  1893  that  'it  shall 
be  unlawful  for  any  common  carrier  engaged  in  interstate 
commerce  by  railroad'  to  use  any  cars  unequipped  with  auto- 
matic couplers  except  four-wheeled  cars  and  logging  cars  in 
moving  interstate  traffic,  the  clearness  and  certainty  of  this 
language  which  prohibits  interpretation,  the  absence  of  any 
expression  of  the  exception  which  the  court  is  asked  to  im- 
port into  this  statute,  the  presumption  from  the  plain  lan- 
guage of  the  law  that  the  Congress  intended  to  make  no  such 
exception,  the  rule  that  the  courts  may  not  insert  in  a  statute 
an  enactment  of  an  assumed  secret  intention  of  the  lawmaking 
body  which  is  not  expressed  therein  or  necessarily  implied, 
the  fact  that  the  interstate  commerce  act  does  not  appear  to 
us  to  define  common  carriers  engaged  in  interstate  commerce 
by  railroad,  but  simply  to  apply  the  provisions  of  that  act  to 

^V.  S.  V.  Wiltberger.  5  Wheat.  95  Am.  Dec.  152;   Smith  v.  State, 

70:     5     L.     Ed.     37:     Bennett    v.  66  Md.   215;    7   Atl.   40;  Railway 

Worthington.    24    Ark.    487.    404;  Co.    v.    Bagley.    60    Kan.  424;    56 

Tynan    v.    Walker,    35    Cal.    634;  Pac.   759. 


390  FEDERAL   SAFETY   APPLIANCE   ACT. 

the  members  of  a  specified  class  of  these  carriers,  the  fact 
that  the  interstate  commerce  act  is  not  in  pari  materia  with 
the  Safety  Appliance  Acts,  either  in  its  subject-matter,  in  the 
evils  it  assails,  or  in  the  remedies  it  provides,  so  that  neither 
its  language  nor  the  construction  thereof  is  apposite  to  or 
controlling  of  the  terms  or  of  the  interpretation  of  the  latter 
act,  the  reason  of  the  case  which  as  imperatively  requires  the 
protection  from  dangerous  vehicles  of  the  employes  of  com- 
panies independently  engaged  in  interstate  commerce  by 
railroad  entirely  within  single  states,  as  it  does  the  protection 
of  the  servants  of  other  companies  employed  in  the  trans- 
portation of  articles  of  interstate  commerce  by  railroad,  all 
these  and  other  facts,  'rules  and  reasons  to  which  reference 
has  been  made,  have  converged  upon  our  minds  with  com- 
pelling power,  and  forced  them  to  the  conclusion  that 
Congress  did  not  intend  to,  and  did  not  except  from  the  pro- 
visions of  the  Safety  Appliance  Acts  common  carriers  en- 
gaged in  the  transportation  of  articles  of  interstate  commerce 
entirely  within  single  states  respectively,  and  exempt  from 
any  common  control,  management  or  arrangement  with  other 
carriers  for  a  continuous  carriage  or  shipment,  but  that  it  in- 
tended to,  and  did,  expressly  include  them  therein  and  sub- 
ject them  thereto. ' '  ^^ 

§  261.  Effect  of  the  case  of  Southern  Railway  Co.  against 
United  States  on  Geddes  and  Colorado  cases. — Naturally 
one  inquiries  how  far  the  case  of  Southern  Railway  Com- 
pany^''^  has  affected  either  the  case  of  United  States 
against  Geddes^''-  or  that  of  United  States  against  Colorado, 
etc.,  Railway  Company,'^°^  or  whether  that  case  has  any 
bearing  upon  the  other  two.  The  sole  question  is  whether 
or  not  the  facts,  which  are  practically  identical,  detailed 
in  the  tw^o  cases  show  a  transaction  in  interstate  commerce. 

'"  United  States  v.  Colorado,  etc.,  ^  <•"  Discussed   at  length   in   section 

Ry.  Co.  157  Fed.  .T21.    In  this  case  a  243. 

crrliorari  was  denied  to  the  defendant.  ''"^  Discussed  in  section  259. 

209  U.  S.  544.  liw  Discussed  in  section  260. 


USE  IN  INTERSTATE  TRAFFIC.  39;!^ 

In  the  one  case  the  court  says  they  do  not,  in  the  other  that 
they  do.  That  is  the  only  (luestion  at  issue  between  them. 
In  a  later  case  (or  perhaps  the  same  case),  the  Federal 
Court  for  one  of  the  districts  of  Ohio  admits  that  if  the 
traffic  had  been  carried  over  the  narrow  gauge  road  by 
through  waybills,  and  it  had  received  its  due  proportion 
of  the  freight  charges  for  the  entire  distance  carried,  the 
transaction  would  have  been  one  of  interstate  commerce.'*®'^ 
Did  the  break  in  the  transportation  of  the  traffic,  after  it 
had  reached  the  state  of  its  destination,  change  an  inter- 
state carriage  into  an  intrastate  carriage  was  the  question 
at  issue  between  these  two  cases.  But  the  United  States 
Supreme  Court  has  in  a  way  solved  the  question.  If  the 
company  owning  the  narrow  gauge  railroad  had  so  used  it 
that  it  had  become  "a  highway  of  interstate  commerce," 
then  it  is  immaterial  that  the  particular  transaction  under 
consideration  was  or  was  not  an  instance  of  interstate  com- 
merce. Proof  of  that  particular  transaction  would  only  be 
for  the  purpose  of  showing  that  it  was  "a  highway  of  inter- 
state commerce,"  or  devoted  to  the  business  of  carrying 
traffic  in  interstate  commerce.  But  if  the  only  instances 
shown  were  the  two  detailed  in  the  two  opinions  in  those  two 
cases,  then  the  question  would  still  remain  whether  or  not 
the  evidence  was  sufficient  to  show  that  the  railroad  line 
was  "a  highway  of  interstate  commerce," — whether  a  single 
transaction  in  interstate  commerce  over  a  line  of  railroad  is 
sufficient  to  show  ^^^  that  it  is  **a  highway  of  interstate  com- 

B9d  United  States  v.  G^ddes,  180  injury  to  hold  the  railroad  corn- 
Fed.  480,  following  in  this  conclu-  pany  amenable  to  the  Fedei^al  Safe- 
sion,  Oincinnati,  N.  0.  &>  T.  P.  Ry.  ty  Appliance  Act.  Felt  v.  Denver 
Co.  V.  Interstate  Commerce  Com-  &  R.  G.  R.  Co.  48  Colo.  249;  110 
mission,  1G2  U.  S.  193;  16  Sup.  Pae.  215.  T!he  soundness  of  this 
Ct.  700;   40  L.  Ed.  935.  case,  however,  is  verj'  questionable, 

•■"'Se  It  has  been  held  by  a  state  for  by  such  use  of  the  railroad  line 

court  that  the  mere  fact  a  railroad  did   not  the  company   make   it   "a 

has    frequently    hauled    interstate  highway  of  interstate  commerce?" 

traffic  is  not  sufficient  in  an  action  Of   course  the   Colorado   case   just 

to  recover  damages  for  a  personal  cited  was  decided  before  the  rece  it 


392  FEDERAL    SAFETY   APPLIANCE   ACT. 

merce. "  There  are  a  number  of  decisions  which  prac- 
tically hold,  and  it  is  usually  admitted,  under  the  old 
interpretation  of  the  statute,  that  a  single  package  of  interstate 
traffic  put  aboard  a  loaded  or  unloaded  freight  train  will 
convert  the  whole  train  into  one  of  interstate  commerce ; 
and  if  that  be  true,  it  is  difficult  to  see  why  proof  of  a 
single  transaction  of  interstate  commerce,  or  carriage  of 
traffic  in  interstate  commerce,  is  not  sufficient  to  show  that 
the  line  of  railroad  was  not  "a  highway  of  interstate  com- 
merce," if  the  carriage  occurred  shortly  before  the  date  of 
the  commencement  of  the  action  w^herein  it  is  necessary  to 
show  that  the  railroad  line  falls  within  the  provisions  of  the 
Safety  Appliance  Act. 

§  262.  Burden — Reasonable  doubt. — The  person  alleging 
that  the  car  causing  the  injury  by  reason  of  defective 
coupling,  or  rather  by  a  failure  to  comply  with  the  statute 
with  regard  to  automatic  coupling,  has  the  burden  to  prove 
that  the  car  at  the  time  was  used  in  interstate  commerce,®" 

case  of  the  Supreme  Court  of  the  408;  United  States  v.  Philadelphia, 
United  States  as  set  forth  in  section  etc.,  R.  Co.  162  Fed.  Rep.  405;  United 
159.  In  the  hght  of  this  recent  case  States  v.  Lehigh  Valley  R.  Co.  162 
of  the  United  States  Supreme  Court,  Fed.  Rep.  410;  United  States  v. 
the  soundness  of  the  case  of  Campbell  Illinois  Central  R.  Co.  166  Fed.  997; 
V.  Chicago,  R.  I.  &  P.  Ry.  Co.  149  111.  United  States  v.  Southern  Pacific  Co. 
App.  120,  afTirmed  243  111.  620;  90  167  Fed.  699;  United  States  v.  South- 
N.  E.  1106  is  doubtful.  ern  Ry.  Co.  170  Fed.  1014;  United 
<">  United  States  v.  Illinois  Central  States  v.  Montpelier  &  W.  R.  Co. 
R.  Co.  156  Fed.  Rop.  182;  United  175  Fed.  874;  United  States  v.  Kan- 
States  V.  Central  of  Ga.  Ry.  157  Fed.  sas  City  Southern  Ry.  Co.  202  Fed. 
Rep.  893;  Kansas  City,  etc.,  R.  Co.  828. 

V.  Flippo,  138  Ala.  487;  35  So.  Rep.  In   a   prosecution    to    recover   the 

457;  Missouri  Pacific  R.  Co.  v.  Ken-  penalty  for  the  violation  of  the  statute 

net,  79  Kan.  232;  99  Pac.  Rep.  263;  within  a  territory,  it  is  not  necessary 

United  States  v.  Chicago,  etc.,  R.  Co.  to  prove  that  the  defendant  was  en- 

162  Fed.  Rep.  775;  United  States  v.  gaged  in  interstate  commerce,  neither 

Louisville,  etc.,  R.  Co.  162  Fed.  Rop.  is  it  necessary  to  show  that  the  car 

185;   United   States   v.    Philadelphia,  itself  was  engaged  in  such  commerce, 

etc.,  R.  Co.  160  Fed.  Rep.  696;  162  United   States  v.  Atchison,  etc.,   R. 

Fed.    Rep.    403;    United    States    v.  Co.  (see  Appendix  G). 
Pennsylvania  R.  Co.  162  Fed.  Rep. 


USE  IN   INTERSTATE  TRAFFIC.  393 

or  was  hauled  in  an  interstate  commerce  train.*"^*  In 
the  case  of  an  empty  ear  hauled  in  a  train,  it  must  be  shown 
that  it  was  used  or  was  intended  to  be  used  in  moving  inter- 
state traffic.  In  a  criminal  case  it  has  been  held  that  this 
must  be  shown  beyond  a  reasonable  doubt.*"  Of  course, 
in  a  civil  case  the  doctrine  of  reasonable  doubt  is 
not  involved.  Nearly  three  years  before  these  cases 
first  cited  had  been  decided  the  Supreme  Court  of 
the  United  States  had  said  in  a  civil  case :  ' '  But 
the  design  to  give  relief  was  more  dominant  than  to  in- 
flict punishment,  and  the  act  might  be  held  to  fall  within 
the  rule  applicable  to  statutes  to  prevent  fraud  upon  the 
revenue,  and  for  the  collection  of  customs,  that  rule  not  re- 
quiring absolute  strictness  of  construction. ' '  *'-  The  first 
case  cited  in  this  section  was  in  the  District  Court  for  the 
Western  District  of  Kentucky.  A  month  before  it  was  de- 
cided the  judge  of  the  District  Court  for  the  Northern  Dis- 
trict of  Alabama  charged  the  jury  as  follows:  "The  burden 
is  upon  the  government  to  make  out  its  case  to  a  reasonable 
certainty — that  is,  to  your  reasonable  satisfaction— by  a  pre- 
ponderance of  the  evidence.  If  you  find,  therefore,  from  a 
preponderance  of  the  evidence  in  this  case  that  the  defendant 
was  a  common  carrier  engaged  in  interstate  traffic  by  rail- 
road, and  that  it  hauled  in  interstate  traffic  the  cars  named 
in  the  petition,  when  said  cars  were  in  such  condition  that, 
in  order  to  operate  the  coupling  or  uncoupling  mechanism 
thereon,  it  was  necessary  for  an  employe  to  go  between  the 
ends  of  the  cars,  you  will  render  your  verdict  for  the  plain- 
tiff.   If  you  do  not  so  find,  you  will  render  your  verdict  for 

60*  Elgin,  etc.,  R.  Co.  v.  United  158,  reversing  117  Fed.  Kep.  402; 

States,   "168     Fed.     Rep.     1      ( de-  54  C.  C.  A.  508;   citing  Taylor  v. 

cided   February  3,    1909);    United  United  States,  3  How.  197;   11  L. 

States  V.  Chicago,  etc.,  R.  Co.  162  Ed.   559;    United   States  v.   Stow- 

Fed.  Rep.  775.  ell,  133  U.  S.  1 ;  10  Sup.  Ct.  Rep. 

"United  States  v.  Illinois  Cent.  244;  33  L.  Ed.  555;  Farmers,  etc., 

R.  Co.   156  Fed.  Rep.   182.  Bank  v.  Dearing,  91  U.  S.  29;   23 

«=  Johnson  v.  Southern  Pac.  Ry.  1-    Ed.    196;    Gray   v.   Bennett,   3 

Co.  196  U.  S.  1;  25  Sup.  Ct.  Rep.  Met.   522. 


394 


FEDERAL,   SAFETY   APPLIANCE   ACT. 


the  defendant.  By  a  preponderance  of  the  evidence,  you  are 
not  to  understand  that  the  government  must  make  out  its 
case  beyond  a  reasonable  doubt.  It  is  sufficient  if  you  are 
satisfied  in  your  own  mind  from  all  the  evidence  that  the  de- 
fendant did  the  act  complained  of.'"^^  In  other  cases  it  has 
been  held  that  the  government  must  prove  its  case  beyond  a 
reasonable  doubt.*^*  But  now  the  great  weight  of  authority 
is  that  the  government  need  not  prove  the  case  beyond  a 
reasonable  doubt,  it  being  sufficient  if  it  furnishes  cl'ear  and 
satisfactory  evidence  of  all  the  necessary  facts.^^  In  all  the 
later  cases  it  is  held  that  the  action  to  recover  the  penalty  in- 
curred by  a  failure  to  properly  tquip  a  ear  is  a  civil  and 
not  a  criminal  action ;  and  now  it  is  the  accepted  rule  that 
in  an  action  to  recover  the  penalty  provided  by  the  statute, 
the  case  may  be  made  out  by  the  government  by  a  mere 
preponderance  of  the  evidence.'^'* 


^^  United  States  v.  Central  of  Ga. 
Ry.  Co.  157  Fed.  Rep.  893. 

**  United  States  v.  Louisville,  etc., 
R.  Co.  156  Fed.  Rep.  193;  United 
States  V.  Louisville,  etc.,  R.  Co.  156 
Fed.  Rep.  195;  United  States  v. 
Illinois  Cent.  R.  Co.  156  Fed.  Rep. 
182. 

Of  course  the  government  must 
show  that  the  defective  car  was  used 
in  interstate  commerce.  Rosney  v. 
Erie  R.  Co.  135  Fed.  Rep.  314;  68 
C.  C.  A.  155,  or  upon  a  railroad  de- 
voted to  a  highway  of  interstate  com- 
merce, section  159. 

"*  United  States  v.  Lehigh  Valley 
R.  Co.  162  Fed.  Rep.  410  (see  Ap- 
pendix G,  p.  311);  United  States  v. 
Philadelphia,  etc.,  R.  Co.  162  Fed. 
Rep.  405  (Appendix  G,  p.  315) ;  United 
States  v.  Pennsylvania  R.  Co.  162 
Fed.  Rep.  408;  United  States  v. 
Philadelphia  R.   Co.   160  Fed.   Rep. 


696:  162  Fed.  Rep.  403;  United  States 
V.  Louisville,  etc.,  R.  Co.  162  Fed. 
Rep.  185;  United  States  v.  Boston  & 
Maine  R.  Co.  168  Fed.  148,  and 
Appendix  G;  United  States  v.  Chi- 
cago, etc.,  R.  Co.  173  Fed.  684  (see 
Appendix  G);  United  States  v. 
Atchison,  etc.,  R.  Co.  167  Fed.  696 
(see  Appendix  G);  United  States  v. 
Terminal  R.  Assn.  (see  Appendix  G); 
United  States  v.  Nevada,  etc.,  R.  Co. 
167  Fed.  695  (Appendix  G). 

««  United  States  v.  Nevada  County 
N.  G.  R.  Co.  167  Fed.  695;  United 
States  v.  Southern  Ry.  Co.  170  Fed. 
1014;  United  States  v.  Atchison,  T. 
&  S.  F.  Ry.  Co.  168  Fed.  696;  United 
States  V.  Baltimore  &  O.  R.  Co. 
176  Fed.  114;  WheeUng  Terminal  Ry. 
Co.  V.  Russell,  209  Fed.  795;  126  C. 
C.  A.  519;  United  States  v.  Central 
of  Georgia  Ry.  Co.  157  Fed.  893. 


CHAPTER  XVI. 
CARS  AND  THEIR  EQUIPMENT. 


SECTION 

263.     What 


264. 
265. 

266. 

267. 

268. 
269. 


270. 


271. 
272. 

273. 
274. 

275. 


is  a  "car"  within  the 
meaning  of  the  statute. 

Electric  cars. 

Empty  car — Car  used  in  mov- 
ing interstate  commerce. 

Empty  car  used  in  interstate 
train. 

Proviso  to  section  6 — Four- 
wheeled  and  logging  cars. 

Kind  of  couplers  to  be  used. 

Without  the  necessity  of  men 
going  between  the  ends  of 
cars. 

Both  ends  of  every  car  must 
be  equipped  with  automatic 
couplers. 

Uncoupling. 

Erroneous  instructions  concern- 
ing height  of  draw  bars. 

Construction  of  section  5. 

Insufficient  operation  of  coup- 
lers. 

Improperly  operated  if  suf- 
ficient couplers. 


SECTION 

276.  Preparation  of  coupler  for 
coupling. 

M.  C.  B.  defect  cord. 

Receiving  an  improperly  equip- 
ped car. 

Question  for  jury. 

When  a  Federal  question  is 
presented. 

State  statute  on  same  subject 
applicable  to  intrastate  com- 
merce. 

Handholds — Through  trains. 

Handholds  on  roof  of  car — 
Sill  steps  —  Handbrakes  — 
Ladders — Running  boards. 

Air  hose,  coupling  chains  and 
appliances  obviating  neces- 
sity for  handholds. 

What  is  and  what  is  not  a 
handhold  a  question  for  the 
jury  —  Expert  testimony  — 
Personal  examination  by 
jury. 


277. 
278. 

279. 
280. 

281. 


282. 
283. 


284. 


285. 


§  263.  What  is  a  "car"  within  the  meaning  of  the  stat- 
ute.— The  statute  prohibits  the  use  of  "any  ear  used  in 
moving  interstate  traffic  not  equipped  with  couplers  coupling 
automatically^  by  impact, ' '  and  the  question  has  several  times 
come  before  the  courts,  "What  is  a  car  within  the  meaning 
and  import  of  the  statute?"  This  question  has  been  answered 
by  the  Supreme  Court  of  the  United  States  where  it  was  asked 
with  reference  to  a  locomotive  not  having  automatic  couplers. 
It  will  be  noted  that  the  first  section  of  the  statute  requires 
locomotives  to  be  equipped  with  power  driving-wheel  brakes, 
and  says  nothing  about  automatic  couplings.  From  this  it 
was  argued  that  the  statute  did  not  require  such  couplers 

395 


396 


FEDERAL.   SAFETY   APPLIANCE  ACT. 


upon  a  locomotive,  because  it  was  not  a  ear,  the  statute  having 
referred  to  locomotives  in  one  section  and  cars  in  another. 
But  the  Supreme  Court  denied  this  contention.  "It  is  not  to 
be  successfully  denied,"  said  Chief  Justice  Fuller,  "that 
they  [locomotives]  are  so  required  if  the  words  'any  car'  of 
the  said  section  were  intended  to  embrace,  and  do  embrace, 
locomotives.  But  it  is  said  that  this  cannot  be  so  because  loco- 
motives were  elsewhere  in  terms  required  to  be  equipped  with 
power  driving-wheel  brakes,  and  that  the  rule  that  the  expres- 
sion of  one  thing  excludes  another  applies.  This,  however,  is 
a  question  of  intention,  and  as  there  was  special  reason  for 
requiring  locomotives  to  be  equipped  with  power  driving- 
wheel  brakes,  if  it  were  also  necessary  that  locomotives  should 
be  equipped  with  automatic  couplers,  and  the  word  'car' 
would  cover  locomotives,  then  the  intention  to  limit  the  equip- 
ment of  locomotives  to  power  driving-wheel  brakes,  because 
they  were  separately  mentioned,  could  not  be  imputed.  Now, 
as  it  was  necessary  for  the  safety  of  employes  in  coupling  and 
uncoupling  that  locomotives  should  be  equipped  with  auto- 
matic couplers  as  it  was  that  freight  and  passenger  and  din- 
ing cars  should  btr,  perhaps  more  so,  as  Judge  Thayer  suggests, 
'since  engines  have  occasion  to  make  couplings  more  frequent- 
ly.' And  manifestly  the  word  'car'  was  used  in  its  generic 
sense.  There  is  nothing  to  indicate  that  any  particular  kind 
of  car  was  meant.  Tested  by  context,  subject-matter  and  ob- 
ject, 'any  car'  meant  all  kinds  of  cars  running  on  the  rails, 
including  locomotives.  And  this  view  is  supported  by  the  dic- 
tionary definitions  and  by  many  judicial  decisions,  some  of 
them  having  been  rendered  in  construction  of  this  act.^  The 
result  is  that  if  the  locomotive  in  question  was  not  equipped 
with  automatic  couplers  the  company  failed  to  comply  with 

'  Citinp     Winkler     v.      Fliiladcl-  Co.     v.     trockor,     Ho     Ala.     412; 

pliia,   otc,   11.   Co.   4  Penn.    (Del.)  Thomas    v.    Georgia,   etc.,    Co.    38 

387;   53  Atl.  Rep.  00;   Fleming  v.  Ga.    222;    Mayor,    etc.,    v.    Third 

Southern  Ry.   Cfl.   131   N.  C.  470;  Ave.   R.   Co.    117   X.   Y.   404,   666; 

East    St.    Loni.s,    etc.,    Ry.    Co.    v.  22  N.  E.  Rep.  755;   Benson  v.  Ry. 

OTfarii,    150    III.    580;     37    N.    E.  Co.  75   Minn.   163;   77  N.  W.  Rep. 

Rep.    !)17;    Kansas    City,    etc.,    R.  798. 


CARS    AND    THEIR    KQUIPMENT. 


397 


the  provisions  of  the  act."^  So  the  act  applies  to  a  dining 
car  standing  on  a  side  track  waiting  to  be  hitched  to  a 
through  train  ;^  and  also  to  a  locomotive  tender.^  So  the 
statute  applies  to  empty  cars  hauled  in  trains  engaged  in 
interstate  commerce.'^  It  also  applies  to  a  steam  shovel  car 
while  in  transportation  from  one  state  to  another ;"  and  to  a 
"shanty"  car/  but  not  to  a  locomotive  crane/*  nor  to  the 
coupling  between  the  engine  and  tender.'^t 


^  Johnson  v.  Southern  Pac.  Co, 
196  U.  S.  1;  25  Sup.  Ct.  Rep.  158, 
reversing  117  Fed.  Rep.  462;  54  C. 
C.  A.  508;  United  States  v.  St.  Louis 
S.  W.  Ry.  Co.  184  Fed.  28;  Central 
Vermont  Ry.  Co.  v.  United  States, 
205  Fed.  40;  123  C.  C.  A.  308; 
Southern  Ry.  Co.  v.  Crockett,  234 
U.  S.  725;  34  Sup.  Ct.  897;  58  L. 
Ed.  1564;  United  States  v.  Central  of 
Ga.  Ry.  Co.  157  Fed.  Rep.  616; 
United  States  v.  Southern  Pacific  Co. 
167  Fed.  699;  United  States  v. 
Southern  Ry.  Co.  170  Fed.  1014; 
Schlemmer  v.  Buffalo,  R.  &  P.  Ry.  Co. 
205  U.  S.  1;  27  Sup.  Ct.  405;  51  L. 
Ed.  68;  Chicago,  M.  &  St.  P.  Ry. 
Co.  V.  United  States,  165  Fed.  423; 
United  States  v.  Chicago,  M.  &  St. 
P.  Ry.  Co.  149  Fed.  486;  United 
States  V.  Philadelphia  &  R.  Ry.  Co. 
223  Fed.  215. 

Where  a  railroad  company  was 
engaged  in  interstate  commerce  and 
constantly  used  an  engine  in  the 
regular  course  of  its  interstate  com- 
merce business,  it  was  held  that  the 
Safety  Appliance  Act  applied  to  the 
engine.  Daly  v.  Illinois  Central  R. 
Co.  170  111.  App.  185. 

But  it  has  been  held  that  a  loco- 
motive need  not  have  an  automatic 
coupling  at  its  front  end.  Wabash 
R.  Co.  V.  United  States,  172  Fed.  864. 
See  Briggs  v.  Chicago  &  N.  W.  Ry.  Co. 
125  Fed.  745.  Contra,  Chicago,  M. 
&  P.  S.  Ry.  Co.  196  Fed.  882. 

^  Johnson  v.  Southern  Pac.  Ry. 
Co.  supra,  reversing  117  Fed.  462; 
54  C.  C.  A.  508;  Winkler  v.  Phila- 
delphia, etc.,  R.  Co.  4  Penn.  (Del.) 
80;  53  Atl.  Rep.  90;  Philadelphia, 
etc.,  R.  Co.  V.  Winkler,  4  Penn.  (Del.) 
387;  56  Atl.  Rep.  112. 

MVinkler  v.  Philadelphia,  etc.,  R. 
Co.  4  Pennewill  (Del.)  80;  53  Atl. 
Rep.  90;  Philadelphia,  etc.,  R.  Co. 
V.  Winkler,  4  Penn.  (Del.)  387;  56 
Atl.  Rep.  112;  Fleming  v.  Southern 
Ry.  Co.  131  N.  C.  476;  42  S.  E. 
Rep.  905;  132  N.  E.  714;  44  S.  E. 
Rep.  551;  United  States  v.  Central 
of  Georgia  Ry.  Co.  157  Fed.  Rep.  616; 
United  States  v.  Southern  Ry.  Co. 
170  Fed.  1014;  United  States  v. 
Baltimore  &  Ohio  R.  Co.   184  Fed. 


94;  Johnson  v.  Southern  Pacific, 
196  U.  S.  1;  25  Sup.  Ct.  158;  49  L. 
Ed.  363. 

A  "tender"  is  not  a  "car"  under  the 
Michigan  statute.  Blanchard  v. 
Detroit,  etc.,  R.  Co.  139  Mich.  694; 
103  N.  W.  Rep.  170;  12  Det.  Leg. 
N.  30;  nor  under  the  Massachusetts 
statute.  Larabee  v.  New  York, 
N.  H.  &  H.  R.  Co.  182  Mass.  348; 
66  N.  E.  1032. 

<*  Malott  V.  Hood,  201  111.  202;  66 
N.  E.  Rep.  247,  affirming  99  111.  App. 
360;  Voelker  v.  Chicago,  etc.,  R.  Co. 
116  Fed.  Rep.  867;  United  States  v. 
St.  Louis,  etc.,  R.  Co.  154  Fed.  Rep. 
516;  United  States  v.  Illinois  Cent.  R. 
Co.  156  Fed.  Rep.  182;  United  States 
v.  Chicago,  etc.,  Ry.  Co.  156  Fed. 
Rep.  616. 

« Schlemmer,  205  U.  S.  1;  27 
Sup.  Ct.  Rep.  407;  51  L.  Ed.  681, 
reversing  207  Pa.  St.  198;  56  Atl. 
Rep.  417;  Chicago,  M.  &  St.  P.  Ry. 
Co.  V.  United  States,  165  Fed.  423; 
United  States  v.  Chicago  &  N.  W. 
Ry.  Co.  157  Fed.  616. 

'  Harden  v.  North  Carohna  R. 
Co.  129  N.  C.  354;  40  S.  E.  Rep.  184; 
55  L.  R.  A.  784. 

All  cars  used  must  be  so  equipped. 
Devine  v.  Illinois  Central  R.  Co.  156 
111.  App.  369. 

'*Lake  Shore  &  M.  S.  R.^Co.  v. 
Benson,  97  N.  E.  417. 

It  applies  to  caboose  cars.  Suttle 
V.  Choctaw,  O.  &  G.  R.  Co.  144  Fed. 
668;  Chicago,  M.  &  P.  S.  Ry.  Co.  v. 
United  States,  196  Fed.  882;  Mobile 
J.  &  K.  C.  R.  Co.  V.  Bromberg,  37 
So.  95;  and  passenger  cars,  Norfolk 
&  W.  Ry.  Co.  V.  United  States, 
177  Fed.  623;  United  States  v.  Nor- 
folk &  W.  Ry.  Co.  184  Fed.  99;  and 
dining  cars,  Johnson  v.  Southern 
Pacific  Co.  196  U.  S.  1;  25  Sup.  Ct. 
158;  49  L.  Ed.  363,  reversing  117  Fed. 
462;  54  C.  C.  A.  580;  Snead  v.  Central 
of  Georgia  Ry.  Co.  151  Fed.  608; 
Chicago,  M.  &  St.  P.  Ry.  Co.  v. 
United  States,  165  Fed.  423. 

't  Pennell  v.  Philadelphia  &  R.  Ry. 
Co.  231  U.  S.  675;  34  Sup.  Ct.  220; 
58  L.  Ed.  430,  affirming  203  Fed.  681; 
122  C.  C.  A.  77. 


398  FEDERAL,    SAFETY   APPLIANCE   ACT. 

§  264.  Electric  cars. — It  has  been  held  that  an  electric 
railroad  running  its  cars  from  one  state  to  another  were 
not  bound  to  equip  the  front  end  of  its  cars  with  automatic 
couplers,  unless  it  intends  to  couple  or  uncouple  cars  at  that 
end;^*  but  this  decision  is  not  sound,  and  diametrically  the 
opposite  has  been  held.®^ 

§  265.  Empty  car — Car  used  in  moving  interstate  com- 
merce.— To  come  within  the  provisions  of  the  statute  it  is 
aiot  necessary  that  the  car  to  be  equipped  was  loaded  with 
interstaite  freight  at  the  time  the  offense  was  comonitted  or 
injury  inflicted.  "The  statutes,  state  and  federal,"  said  Jus- 
tice Shiras^  "requiring  railway  companies  to  equip  their  ears 
with  automatic  couplers  were  not  enacted  to  protect  freight 
transported  therein,  but  for  the  protection  of  the  life  and  limb 
of  the  employes  who  were  expected  to  haul  those  cars.  The 
beneficent  purposes  of  these  statutes  are  defeated  if  the  em- 
ployes are  required  to  handle  ears  not  equipped  as  required 
by  the  statutes,  without  regard  to  the  question  whether  the 
cars  are  loaded  or  not.  Legislation  on  this  matter  of  the  use 
of  automatic  couplers  was  sought  and  obtained  from  Congress, 
as  well  as  from  the  state  legislature,  so  that  companies 
would  not  be  afforded  a  loophole  for  escape  from  liability 
on  the  theory  that  the  agencies  used  in  interstate  commerce 
are  without  the  control  of  the  state  legislatures.  When  com- 
panies, like  the  defendant  in  this  case,  are  engaged  in  inter- 
state traffic,  it  is  their  duty,  under  the  act  of  Congress,  not 
to  use,  in  connection  with  such  traffic,  cars  that  are  not 
equipped  as  required  by  that  act.  This  duty  of  proper  equip- 
ment is  obligatory  upon  the  company  before  it  uses  the  car  in 
connection  with  interstate  traffic,  and  it  is  not  a  duty  which 
only  arises  when  the  car  happens  to  be  loaded  with  in- 
terstate traffic.  It  frequently  happens  that  the  railway 
companies  load  cars  with  live  stock  or  farm  produce  in  the 

'•  Campbell   v.    Spokane   &   I.    E.  of  a  statute  of  the  state  regulating 

R.  Co.  188  Fed.  51(5.  tlie  liabilitj'  of  railroad  companies  for 

In  Taylor  v.  Prairie  Peobic  Pho.s-  injuries  to  their  employees, 
phate  Co.  01  Fla.  45.");  .'34  So.  904,  «t  Spokane  &  I.  E.  R.  Co.  v.  United 
it  wa.s  held  that  a  corporation  en-  States,  210  Fed.  243;  127  C.  C.  A. 
gaged  in  phosphate  mining,  and  as  Gl,  affirming  200  Fed.  OSS. 
an  incident  thereto  operates  trolhsy  The  act  does  not  apply  to  street 
engines  and  cars  for  hauling  the  railways.  Southern  R.  Co.  v.  Crock- 
phosphate,  is  not  "a  railroad  corn-  ett,  2'M  U.  S.  725;  34  Sup.  Ct.  897; 
pany"  within  the  terms  and  rruianing  58  L.  Ed.  1507. 


CARS    AND    THEIR    EQUIPMENT. 


399 


western  states  and  carry  the  same  to  eastern  markets,  and  then 
return  those  cars  without  a  h)ad;  but  it  cannot  be  true  that 
on  the  eastern  trip  the  provisions  of  the  act  of  Congress  would 
be  binding  upon  the  company,  because  the  cars  were  loaded, 
but  would  not  be  binding  upon  the  return  trip,  because 
the  cars  are  empty.  "Whatever  cars  are  designed  for  inter- 
state traffic,  the  company  owning  or  using  them  is  bound  to 
equip  them  as  required  by  the  act  of  Congress;  and  when  it 
is  showTi,  as  it  was  in  this  case,  that  a  railway  company  is 
using  a  car  for  transportation  purposes  between  the  two 
states,  sufficient  is  shown  to  justify  the  court  in  ruling  that 
the  act  of  Congress  is  applicable  to  the  situation." « 

§  266.  Empty  car  used  in  interstate  train.— It  has  been 
laid  down  that  in  order  to  inflict  a  penalty  for  the  use  of  an 
empty  car  hauled  in  an  interstate  train  it  must  be  shown  that 
the  car  was  used  (or  intended,  perhaps,  to  be  used)  in  moving 
interstate  traffic.**     The  mere  hauling  of  an  empty  ear  from 


8  Voelker  v.  Chicago,  etc.,  Ry.  Co. 
116  Fed.  Rep.  867;  Malott  v.  Hood, 
201  111.  202;  66  N.  E.  Rep.  247 
(affirming  99  111.  App.  360);  United 
States  V.  St.  Louis,  etc.,  Ry.  Co.  154 
Fed.  Rep.  516;  United  States  v. 
Illinois  Cent.  R.  Co.  156  Fed.  Rep. 
182;  United  States  v.  Chicago,  etc., 
R.  Co.  156  Fed.  Rep.  616;  United 
States  V.  Northern  Pac.  T.  Co.  144 
Fed.  Rep.  861;  Johnson  v.  United 
States,  196  U.  S.  1;  25  Sup.  Ct.  Rep. 
158,  reversing  54  C.  C.  A.  508;  117 
Fed.  Rep.  462;  Elgin,  etc.,  R.  Co. 
V.  United  States,  168  Fed.  Rep.  1 
(decided  February  3,  1909). 

United  States  v.  International  & 
G.  N.  R.  Co.  174  Fed.  638;  Chicago, 
M.  &  St.  P.  Ry.  Co.  V.  United  States, 
165  Fed.  423;  Chicago,  M.  &  St.  P. 
Ry.  Co.  168  Fed  236;  United  States 
V.  Louisville  &  N.  R.  Co.  162  Fed. 
185;  United  States  v.  Wheeling  & 
L.  E.  R.  Co.  167  Fed.  198;  United 
States  V.  Atchison,  T.  &  S.  F.  Ry. 
Co.;  Appendix  G;  United  States  v. 
Chesapeake  &  0.  Ry.  Co.,  Appendi.x 
G;  United  States  v.  Southern  Ry. 
Co.  170  Fed.  1014. 

The  cases  squarely  hold  that  the 
hauling  of  an  empty  car  from  one 
point  in  a  state  to  another  in  the 
same  state  in  a  train  where  cars  are 
loaded     with     interstate     commerce 


is  a  violation  of  the  statute.  Phila- 
delphia &  R.  Ry.  Co.  V.  United 
States,  191  Fed.  1;  111  C.  C.  A.  661; 
Gray  v.  Louisville  &  N.  R.  Co. 
197  Fed.  874;  United  States  v.  Inter- 
national &  G.  N.  R.  Co.  174  Fed.  638; 
98  C.  C.  A.  392;  Belt  Ry.  Co.  v.  United 
States,  168  Fed.  542;  93  C.  C.  A.  666; 
United  States  v.  Chicago  G.  W.  Ry. 
Co.  162  Fed.  775;  United  States  v. 
Southern  Ry.  Co.  164  Fed.  347. 

Such  is  the  Illinois  statute.  Devine 
V.  Chicago  &  C.  R.  Co.  168  111.  App. 
450;  Leuken  v.  Lake  Shore  &  M.  S. 
Ry.  Co.  248  111.  377;  94  N.  E.  175; 

140  Am.  St.  220;  21  Am.  Cas.  82; 
Wabash  Ry.  Co.  v.  United  States, 
168  Fed.  Rep.  1  (decided  February 
3,  1909);  United  States  v.  Atlantic 
Coast  Line  R.  Co.,  Appendix  G; 
Chicago,  etc.,  R.  Co.  v.  United  States, 
168  Fed.  Rep.  236  (decided  March  10, 
1909);  United  States  v.  Southern 
Ry.  Co.,  Appendix  G.  See  section 
241. 

^  LTnited  States  v.  Chicago  Ry.  Co. 
156  Fed.  Rep.  182;  United  States  v. 
Great  Northern  Ry.  Co.  145  Fed. 
Rep.  438;  United  States  v.  St.  Louis, 
etc.,  Ry.  Co.  154  Fed.  Rep.  516; 
Mobile,   etc.,    R.   Co.   v.   Bromberg, 

141  Ala.  258;  37  So.  Rep.  395;  see 
note  8  above. 


400  FEDERAL,   SAFETY   APPLIANCE   ACT. 

one  state  to  another,  though  it  may  be  for  repairing  a  defect 
in  it,  is  engaging  in  interstate  commerce;^"  and  there  is  no 
distinction  between  hauling  a  car  actually  engaged  in  inter- 
state commerce  and  hauling  one  that  is  generally  used  in 
moving  interstate  traffic,  although  not  actually  so  engaged  at 
the  time  when  the  offense  is  charged  as  being  committed.'^ 

§  267.  Proviso  to  Section  6 — Four-wheeled  and  logging 
cars. — The  plaintiff,  nor  the  government,  need  not  negative 
the  provisions  contained  in  the  proviso  of  Section  6  relating 
to  four-wheeled  and  logging  cars.  If  the  cars  that  were  not 
properly  equipped  were  of  that  class  it  is  a  matter  of  de- 
fense.^^  The  burden  is  also  upon  the  defendant  to  show  that 
the  cars  were  of  that  kind.^' 

§  268.  Kind  of  coupler  to  be  used. — No  particular  kind  of 
coupler  need  be  used.  The  sole  requirement  is  that  couplers 
must  be  used  that  will  couple  "automatically  by  impact,  and 
which  can  be  uncoupled  without  the  necessity  of  men  going 


"  United  States  v.   Chicago,   etc.,  v.  Southern  Pacific  Co.  177  Fed.  796; 

Ry.  Co.  157  Fed.  Rep.  616.  Southern  Ry.  Co.  v.  Snyder,  187  Fed. 

"  United  States  v.   Chicago,   etc.,  492;  Felt  v.  Denver  &  R.  G.  R.  Co. 

Ry.  Co.  157  Fed.  Rep.  616;  see  also  48  Colo.  249;  110  Pac.  215. 

section  243;     Johnson     v.     Southern  '-  Schlemmer   v.   Buffalo,   etc.,   R. 

Pacific  Co.  196  U.  S.  1;  25  Sup.  Ct.  Co.  205  U.  S.  1;  27  Sup.  Ct.  Rep.  407; 

158;  49  L.  Ed.  363;  North  Carolina  51  L.  Ed.  681,  reversing  207  Pa.  St. 

R.  Co.  V.  Z.achary,  232  U.  S.  248;  198;  56  Atl.  Rep.  417;  United  States 

34  Sup.  Ct.  305;  58  L.  Ed.  519;  Voelker  v.  Atlantic,  etc.,  R.  Co.  153  Fed.  Rep. 

V.  Chicago,  M.  &  St.  P.  Ry.  Co.  116  918;   Ryan  v.   Carter,   93  U.  S.  78; 

Fed.  867;  United  States  v.  Northern  United  States  v.  Dixon,  15  Pet.  141; 

Pacific  Terminal  Co.   144  Fed.  861;  Interstate     Commerce     Commission 

United  States  v.  Chicago  &  N.  W.  v.  Baird,  194  U.  S.  25;  24  Sup.  Ct. 

Ry.  Co.  157  Fed.  616;  United  States  Rep.  563;  48  L.  Ed.  860,  reversing  123 

v.  Louisville  &  N.  R.  Co.  102  Fed.  Fed.  Rep.  969. 

185;  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  '^  Schlemmer  v.   Buffalo,   etc.,   R. 

United  States,  165  Fed.  423;  United  Co.   supra;  I'nited   States   v.   Cook, 

States  V.  Wheeling  &  L.  E.  R.  Co.  17  Wall.  16S;  21  L.  Ed.  538;  Common- 

167    Fed.    198;    Wabash    R.    Co.    v.  wealth  v.  Hart,  11  Cush.  130;  United 

United  States,   168  Fed.   1;  Chicago  States  v.   Denver,   etc.,   R.   Co.   163 

&  N.  W.  Ry.  Co.  v.  United  States,  Fed.  Rep.  519;  Smith  v.  United  States, 

108    Fed.     236;    United     States    v.  157  Fed.  Rep.  721;  85  C.  C.  A.  353; 

Southern    Ry.    Co.    170    Fed.    1014;  Ignited    States   v.    Atlantic,    etc.,    R. 

United  States  v.  International  A:  G.  Co.  153  Fed.  Rep.  918. 
N.  R.  Co.  174  Fed.  638;  Hohenleitner 


CARS    AND    THEIR    EQUIPMENT.  4OI 

between  the  ends  of  the  cars"  to  uncouple  them."*  This  is 
the  use.  Thus,  the  court  in  one  case  charged  the  jury  as  fol- 
lows: "Should  you  find  the  tender  at  the  time  of  accident 
was  equipped  with  automatic  couplers,  but  that  it  was  so 
connected  with  the  'bull-nose'  coupler  that  the  coupling  with 
other  cars  was  not  made  automatically  by  impact,  but  so 
equipped  that  it  made  it  necessary  for  men  to  go  between 
the  ends  of  the  cars  to  couple  and  uncouple,  then  such  coup- 
ling did  not  comply  with  the  acts  of  Congress,  and  was 
unlawful;"^'*  the  instruction  was  held  to  be  a  correct  state- 
ment of  the  requirement  of  the  statute,  the  court  saying: 
"The  true  intent  and  meaning  of  the  statute  is  not  merely 
that  the  cars,  etc.,  used  in  moving  interstate  commerce  shall 
be  equipped  with  automatic  couplers  of  the  description 
therein  mentioned,  but  also  that  such  couplers  shall  be  in 
such  condition  as  to  be  used  automatically  while  such  cars 
are  so  engaged. "^^  "What  the  act  plainly  forbade  was  the 
use  of  cars  which  would  not  be  coupled  together  auto- 
es* Southern  R.  Co.  v.  Crockett,  234  G.  R.  Co.  167  Fed.  696;  United  States 
U.  S.  725;  34  Sup.  Ct.  897;  58  L.  v.  Baltimore  &  0.  R.  Co.  170  Fed.  456; 
Ed.  1564;  Minneapolis,  St.  L.  &  S.  M.  United  States  v.  Southern  Ry.  Co. 
Ry.  Co.  V.  Popplar,  35  Sup.  Ct.  609,       170  Fed.  1014. 

affirming  121  Minn.  413;  141  N.  W.  It  has  been  said  that  the  phrase 

798;  Ann.  Cas.  1915  D  383.  "cars  be  uncoupled  without  the  neces- 

'*  Winkler  v.  Philadelphia,  etc.,  sity  of  men  going  between  the  ends 
Ry.  Co.  4  Penn.  (Del.)  80;  53  Atl.  of  the  cars"  was  merely  descriptive 
Rep.  90;  United  States  v.  Southern  of  the  equipment  required,  and  does 
Ry.  Co.  135  Fed.  Rep.  122;  United  not  import  that  it  is  the  duty  of  the 
States  V.  Louisville,  etc.,  R.  Co.  162  carrier  to  keep  such  equipment  in 
Fed.  Rep.  185;  United  States  v.  repair  at  all  events.  United  States 
Philadelphia,  etc.,  R.  Co.  100  Fed.  v.  Illinois  Central,  170  Fed.  542. 
Rep.  696;  162  Fed.  Rep.  403;  United  ''  Philadelphia,    etc.,    R.    Co.    v. 

States  V.  Pennsylvania  R.  Co.  162  Winkler,  4  Penn.  (Del.)  387;  112  Atl. 
Fed.  Rep.  408;  United  States  v.  Rep.  56;  Voelker  v.  Chicago,  etc.,  R. 
Philadelphia,  etc.,  R.  Co.  162  Fed.  Co.  116  Fed.  Rep.  867;  Southern  Ry. 
Rep.  405;  United  States  v.  Lehigh  Co.  v.  Simmons,  105  Va.  651;  55 
Valley,  162  Fed.  Rep.  410;  United  S.  E.  Rep.  459;  44  Am.  &  Eng.  R. 
States  v.  Atchison,  etc..  R.  Co.  167  Cas.  572;  United  States  v.  El  Paso, 
Fed.  696  (Appendix  G);  United  States  etc.  (see  Appendix);  Johnson  v. 
v.  Chesapeake  &  Ohio  Ry.  Co.  (see  Southern  Pac.  Co.  196  U.  S.  1;  25 
Appendix  G);  United  States  v.  South-  Sup.  Ct.  Eep.  158;  49  L.  Ed.  363, 
ern  Pacific  Co.  167  Fed.  699  (see  reversing  54  C.  C.  A.  508;  117  Fed. 
Appendix  G);  United  States  v.  Den-  Rep.  462;  United  States  v.  Chicago, 
ver  &  R.  G.  R.  Co.  163  Fed.  519;  etc.,  R.  Co.  149  Fed.  Rep.  486;  Wink- 
United  States  V.  Nevada  County,  N.       ler  v.  Philadelphia,  etc.,   Ry.  Co.  4 


402  FEDERAL   SAFETY   APPLIANCE   ACT. 

matically  by  impact  by  means  of  the  couplers  actually  used 
on  the  cars  to  be  coupled."^  Such  is  the  case  where  the 
couplers  will  not  work  effectively  by  reason  of  a  clevis  pin 
having  been  removed,-  or  by  reason  of  its  having  been  worn 
out,^  or  the  uncoupling  chain  being  kinked  in  the  coupler 
head,'*  or  the  cars  will  not  couple  because  of  the  curvature 
of  the  track  on  which  the  cars  in  question  are  attempted  to 
be  coupled;^  or  the  cars  are  so  laden  with  lumber  or  other 
material  projecting  beyond  their  ends  as  to  preclude  the 
automatic  operation  of  such  couplers."  The  statutes  forbid 
the  use  of  a  car  on  which  the  coupler  is  in  operation  even 
though  the  defect  may  be  so  obvious  that  no  reasonably  pru- 
dent employee  would  attempt  to  use  such  a  coupler."  The 
use  of  a  car  on  which  a  coupler  is  inoperative  is  the  same 
in  legal  effect  as  if  such  car  had  never  been  equipped  with 
automatic  couplers.*  A  carrier  is  liable  under  the  statute 
for  the  failure  of  an  employee  to  connect  an  uncoupling 
chain  as  well  as  for  allowing  such  a  chain  to  become  dis- 
connected.^ The  statutes  do  not  require  cars  to  be  equipped 
with  double  levers,  though  they  permit  it  ;^°  yet  if  they  be 

Penn.  (Del.)  387;  53  Atl.  Rep.  90;  Co.  177  Fed.  796;  Willett  v.  Illinois 
Tnited  States  v.  Atchison,  T.  &  S.       Central  R.  Co.  122  Minn.  513;  142 

F.  Ry.    Co.    167   Fed.    696;   United      N.  W.  883. 

States  V.  Southern  Ry.  Co.  167  Fed.  ^  United  States  v.  Illinois  Central 

699.  R.  Co.  177  Fed.  801. 

'  Johnson  v.  Southern  Pacific  Co.  '  Chicago,  M.  &  P.  S.  Ry.  Co.  v. 
196U.S.  l;25Sup.Ct.l58;363L.Ed.  United  States,  196  Fed.  882;  101  C. 
49;  United  States  v.  Southern  Ry.  C.  A.  15.  Cited  with  apparent  ap- 
Co.  170  Fed.  1014;  United  States  v.  proval  in  Southern  Ry.  Co.  v.  Crock- 
Rio  Grande  W.  Ry.  Co.  174  Fed.  399;  ett,  234  U.  S.  725;  34  Sup.  Ct.  897; 
United  States  v.  Nevada  County  N.  58  L.  Ed.  1564. 

G.  R.  Co.  167  Fed.  695.  » Taggert  v.  Republic  Iron  &  Steel 
2  United  States  v.  Indiana  Harbor  Co.  141  Fed.  910;  73  C.  C.  A.  144; 

R.  Co.  157  Fed.  565.    Contra,  United  Elmore   v.    Seaboard   Air   Line    Ry. 

States  V.  Illinois  Central  R.  Co.  156  Co.   130  N.   C.   506;   41   S.   E.  786; 

Fed.  182.  Luken  v.  Lake  Shore  &  M.  S.  Ry.  Co. 

■'  Voelker  v.  Chicago,  M.  &  St.  P.  154  111.  App.  550. 

Ry.  Co.  116  Fed.  867;  United  States  "United  States  v.  Great  Northern 

V.  Illinois  Central  R.  Co.   177  Fed.  Ry.  Co.  150  Fed.  229;  United  States 

801.  V.  Atchison,  T.  &  S.  F.  Ry.  Co.  167 

*  United  States  v.  Denver  &  R.  G.  Fed.  696.     Contra,  United  States  v. 

R.  Co.  163  Fed.  519;  United  States  Illinois  Central  R.  Co.  156  Fed.  182. 

V.  Southern  Pacific  Co.  167  Fed.  699.  '»  United  States  v.  Philadelphia  & 

»  Hohenleitner  v.  Southern   Pacific  R.  Ry.  Co.  160  Fed.  696;  Norfolk  & 


CARS    AND    THEIR    EQUIPMENT. 


403 


provided  they  must  be  operative  from  either  side  of  the  ears 
to  which  they  are  attached.'^  The  use  by  a  railway  com- 
pany of  a  switch  engine  having  no  uncoupling  levers  does 
not  constitute  a  violation  of  the  statutes  unless  it  be  shown 
that  such  levers  are  necessary  to  enable  the  engine  to  be 
coupled  automatically  by  impact  and  to  be  uncoupled  with- 
out the  necessity  of  men  going  between  such  engine  and  the 
vehicle  from  which  it  is  to  be  coupled/^  But  the  fact  that 
the  couplers  have  too  much  play  is  not  a  violation  of  the 
statute,  if  they  are  otherwise  in  compliance  with  it/^  The 
fact  that  the  couplers  must  be  placed  in  position  so  they  will 
strike  together  when  in  the  act  of  coupling  does  not  render 
them  defective  under  the  statute.^*  Of  course,  the  person 
alleging  that  a  car  was  inadequately  equipped  has  the  bur- 
den to  show  that  as  a  fact;^^  and  evidence  merely  of  a 
defect  in  the  coupler  will  not  sustain  the  averment  that  the 
cars  were  not  equipped  with  automatic  couplers. ^^  If  the 
lever  of  a  car  coupler  will  not  lift  the  pin  from  the  socket, 


W.  Ry.  Co.  V.  United  States,  177 
Fed.  623;  101  C.  C.  A.  249. 

"  Norfolk  &  W.  Ry.  Co.  v.  United 
States,  177  Fed.  623;  101  C.  C.  A.  249. 

'2  United  States  v.  Montpelier  & 
W.  R.  Co.  175  Fed.  874. 

13  Morris  V.  St.  Louis  &  S.  W.  R. 
Co.  (Tex.  Civ.  App.)  158  S.  W.  1055. 

1*  Morris  V.  St.  Louis,  S.  W.  Ry. 
Co.  (Tex.  Civ.  App.)  158  S.  W.  1055. 
In  this  case  tiie  plaintiff  was  endeavor- 
ing to  couple  a  switch  engine  with 
a  flat  car,  both  equipped  with  auto- 
matic couplers.  After  the  coupling 
was  not  made  the  first  time  they 
come  together,  he  pulled  the  draw 
bar  toward  him  as  far  as  he  could, 
gave  the  engineer  the  signal  to  ad- 
vance, and  just  before  the  couplings 
came  together  he  saw  that  the  draw 
bar  on  the  car  v,-as  not  in  proper  posi- 
tion and  kicked  the  bar  over  as  far 
as  he  could.  The  knuckle  of  the 
engine  caught  the  sole  of  his  shoe  and 
dragged  his  foot  into  the  coupling 
which  was  then  made.  It  was  held 
that  the  fact  that  the  coupler  on  the 
car  was  not  properly  adjusted  in  that 
it  had  too  much  play  did  not  con- 


stitute a  violation  of  the  Safety 
Appliance  Act. 

While  a  car  was  several  times 
"kicked"  so  as  to  make  a  coupling, 
an  employee  to  secure  the  coupling  as 
often  tried  to  lift  the  automatic 
coupler  by  pulling  it,  but  finally 
stepped  between  the  cars  and  was 
killed.  His  conductor  said  he  would 
have  reported  it  as  a  "bad  coupler"  if 
he  had  known  of  it.  This  was  held 
sufficient  evidence  to  take  the  case 
to  the  jury.  Minneapolis,  St.  P.  & 
S.  M.  Ry.  Co.  v.  Popplar,  35  Sup. 
Ct.  699,  affirming  121  Minn.  413;  141 
N.  W.  798;  Ann.  Cas.  1914  D  383. 

"Philadelphia,  etc.,  Ry.  Co.  v. 
Winkler,  4  Penn.  (Del.)  387;  56  Atl. 
Rep.  112;  United  States  v.  Louisville 
&  N.  R.  Co.  162  Fed.  185;  United 
States  V.  Atchison,  T.  &  S.  F.  Ry. 
Co.,  Appendix  G;  United  States  v. 
IlHnois  Central  R.  Co.  166  Fed.  997; 
United  States  v.  Southern  Ry.  Co. 
170  Fed.  1014;  Hench  v.  Pennsylvania 
R.  Co.  (Pa.)  91  Atl.  1056. 

"  Kansas  City,  etc.,  R.  Co.  v. 
Flippo,  138  Ala.  487;  35  So.  Rep.  457. 


404 


FEDERAL   SAFETY  APPLIANCE   ACT. 


and  the  Imnelde  cannot  hp  rlra-wn  open  "Hy  Ipnm'nsr  lo'warrl  the 
coupler  and  using  one  hand,  hut  to  open  it  requires  the  pres- 
ence of  the  employes  hetween  the  ends  of  the  cars,  and  the 
use  of  both  hands,  thereby  neeessitatinc?  the  -nlacinfr  of  the 
entire  body  of  the  employe  between  the  draw  bars  of  the  car, 
the  coupler  does  not  comply  with  the  statute.^^  It  is  no  de- 
fense, if  a  car  is  not  properly  equipped,  to  show  that  the 
adjoining  car  was  not,  thereby  rendering  it  impossible  to  use 
the  couplings.^^*  But  the  statute  does  not  require  auto- 
matic couplers  between  the  engine  and  the  tender. ^^' 


18  Chicago,  etc.,  Ry.  C5o.  v.  Voel- 
ker,  129  Fed.  Rep.  522;  65  C.  C. 
A.  6,5;  70  L.  R.  A.  264;  s.  c.  116 
Fed.  Rep.  867;  United  States  v. 
El  Paso  R.  Co.  (Appendix  G, 
pp.  274,  279)  ;  United  States  v. 
Nevada,  etc.,  R.  Co.  167  Fed.  695; 
Appendix  G;  United  States  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.  Ap- 
pendix G ;  United  States  v.  Indiana 
Harbor  R.  Co.    157   Fed.   565. 

The  Canadian  statute  (55  Vict. 
Ch.  30,  Sec.  3)  prohibits  cars 
having  buffers  of  different  heights, 
so  that  in  coupling  they  overlap 
and  afford  no  protection  to  the 
person  making  the  coupling,  being 
a  "defect  in  the  arrangement  of 
the  plant."  Board  v.  Toronto  Ky. 
Oo.  22  Ont.  App.  78,  affirming  24 
Can.  Sup.  Ct.  715.  See,  also,  the 
Michigan  statute.  Betterly  v. 
Boyne  City,  G.  &  A.  R.  Co.  158 
Mich.  385;  122  N.  W.  635;  16 
Det.  Leg.  N.  628. 

Where  the  chain  which  con- 
nected the  lock  pin  to  the  uncoup- 
ling lever  was  not  attached  and 
only  need  to  be  connected  to  make 
the  appliance  available,  it  was  held 
that  the  car  in  such  condition  was 
out  of  repair,  as  it  was  not  le- 
gally equipped  until  the  chain 
v/as  connected;  and  in  the  ab- 
sence of  evidence  showing  that 
tiie  chain  was  ever  attached,  it 
was  preanmod,  since  the  working 
parts   were    in   perfect   order,    that 


the  apparatus  was  only  partially 
completed  and  that  it  was  the 
ultimate  intention  to  connect  the 
parts  and  to  thereby  comply  with 
the  provisions  of  the  statute. 
United  States  v.  Great  Northern 
Ry.  Co.  150  Fed.  Rep.  229; 
United  States  v.  Chicago,  etc.,  ii. 
Co.  149  Fed.  Rep.  486;  Donegan 
V.  Baltimore,  etc.,  R.  Co.  165  Fed. 
Rep.  869.  Clevis  pin  absent,  pre- 
sumption. United  States  v.  Atchi- 
son, T.  &  S.  F.  Ry.  Cb.  Appendix 
G.  Bull  nose  coupler.  Philadel- 
phia &  R.  Ry.  Co.  V.  Winkler,  4 
Penn.  (Del.)  387;  56  Atl.  112. 
Kinked  chains.  United  States  v. 
Denver  &  R.  G.  R.  Co.  163  Fed. 
510;  United  States  v.  Southern 
Pacific  Co.  167  Fed.  699;  Norfolk 
&  W.  Ry.  Co.  V.  U.  S.,  191  Fed. 
302.  Chain  connected  with  hand 
rail.  United  States  v.  Toledo  Ter- 
minal R.  Co.  Appendix  G.  Worn 
out  coupler.  Voelker  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.  116  Fed.  867. 
Inoperative  coupler.  Taggert  v. 
Republic  Iron  &  Steel  Co.  l41  Fed. 
910. 

18*  United  States  v.  Atchison? 
etc.,  R.  Co.  (see  Appendix  G ) .  If 
a  servant  of  the  company  dclibci'- 
ately  puts  on  an  imperfect  coup- 
ling the  company  is  still  liable. 
Ignited  .States  v.  Southern  Pac. 
Co.  167  Fed.  699  (see  Appen- 
dix G)  ;  Chicago,  etc..  R.  Co.  v. 
King.  169  Fed.  Rep.  372  (decided 
February  3,  1909). 

■"t  Penncll  v.  Philadelphia  &  R. 
Ry.  Co.  2:n  IT.  S.  (ufy,  34  Sup.  Ct. 
220;  58  L.  l':d.  430,  affirming  203  Fed. 
(3S1;  122C.  C.  A.77. 


CARS    AND    THEIR    EQUIPMENT.  4Q5 

§  269.  "Without  the  necessity  of  men  going  between  the 
ends  of  cars." — The  words  "without  the  necessity  of  men 
going  between  the  ends  of  cars"  applies  more  than  to  the 
act  of  coupling.  "The  phrase  literally  covers  both  coupling 
and  uncoupling,  and  if  read,  as  it  should  be,  with  a  comma 
after  the  word  'uncoupled,'  this  becomes  entirely  clear." 
"In  the  present  case  the  couplings  would  not  work  together, 
Johnson  was  obliged  to  go  between  the  cars,  and  the  law 
was  not  complied  with.  "^®  So  the  car  must  be  equipped 
that  it  can  be  coupled  from  either  side  without  going  be- 
tween them  to  couple  them;  and  if  so  equipped  that  they 
can  be  coupled  from  one  side  without  going  between  them 
and  not  from  the  other,  the  statute  is  not  complied  with.^° 
If  the  tracks  are  so  uneven  or  curved  that  two  cars  coming 
together  will  not  couple  by  compact,  then  they  are  not 
equipped  as  the  statute  requires,  although  upon  a  level  or 
straight  track  they  would  readily  so  couple.^^^  The  coup- 
lings must  be  suiHcient  so  the  cars  can  be  both  coupled  and 
uncoupled  without  the  trainmen  being  under  the  necessity 
of  going  between  the  cars.-°^     If  the  cars  be  so  loaded  that 

19  Jolinson  V.  Southern  Pac.  Ry.  Gauge  Co.  167  Fed.  695;  Blackburn  v. 

Co.  196  U.  S.  1;  25  Sup.  Ct.  Rep.  Cherokee  Lumber  Co.  152  N.  C.  361; 

158;      reversing     117      Fed.     Rep.  67  S.  E.  915;  McGarvey  v.  Detroit, 

462;   United  States  v.  Central  of  J;  *  ^-..^y;^/?-  ^^,  9^^  ^>  ^P'  ^* 

Ga.  Ry.  Co.  157  Fed.  Rep.  893;  JJ'  ^'^f  ^^^j°  ^*^*^*^)  ^°^^°"  ^; 
.^T  1  >T  vt  /-,  1-  -r,  ^  New  Orleans  &  G.  N.  R.  Co.  I60 
Harden  v.  North  Carolina  R.  Co.  l^  735  54  g^  ioi4;  San  Antonio 
129  N.  C.  ^54:  40  S.  E.  Rep.  184;  &  a.  P.  Ry.  Co.  v.  Wagner  (Tex.  Civ. 
55  L.  R.  A.  784;  Chicago,  etc.,  Ry,  App.)  166  S.  W.  24. 
Co.  V.  Voelker,  129  Fed.  Rep.  20  United  States  v,  Central~bf 
522;  65  C.  C.  A.  65;  70  L.  R.  A.  Ga.  Ry.  Co.  157  Fed.  Rep.  893; 
264;  United  States  v.  Chicago,  Southern  Ry.  Co.  v.  Simmons,  105 
etc.,  Ry.  Co.  149  Fed.  Rep.  4)86;  Va.  651;  55  S.  E.  Rep.  459;  44 
Schlemmer  v.  Buffalo,  etc.,  Ry.  Am.  &  Eng.  R.  Cas.  572;  United 
Co.  205  U.  S.  1;  27  Sup.  Ct.  Rep.  States  v.  Atchison,  etc.,  R.  Co. 
407 ;  United  States  v.  El  Paso,  ( Appendix  G )  ;  United  States  v. 
etc.,  R.  Co.  (Appendix  G).  As  to  Louisville  &  N.  R.  Co.  162  Fed. 
the  use  of  the  comma  in  the  stat-  185  (see  Suttle  v.  Choctaw,  0. 
ute,  see  also,  L^nited  States  v.  Erie  &  G.  R.  Co.  144  Fed.  668;  75 
R.  Co.  166  Fed.  352.  See,  also,  c.  C.  A.  470)  ;  Norfolk  &  W.  Ry. 
Norfolk  &  W.  Ry.  Co.  v.  United  Co.  v.  United  States,  177  Fed.  623. 
States,  177  Fed.  623 ;  United  20a  Hohenleitner  v.  Southern  Pa- 
States  v.  Nevada  County  NaiTOw  cific  Co.  177  Fed.  796. 

20b  Southern  Railway  Co.  v.  Sim- 
mons,  (S.  C.)  ;   55  S.  E.  459. 


406 


FEDERAL   SAFETY   APPLIANCE   ACT. 


they  cannot  come  together  so  as  to  couple  by  compact,  they 
are  not  properly  equipped. -°*  The  statute  requires  that 
couplers  shall  be  operative  in  an  ordinary  and  reasonable 
manner.^  "If  a  coupler  fails  to  work  when  an  honest  and 
reasonable  effort  is  made  to  operate  it,  under  circumstances 
and  in  the  manner  it  is  designed  to  be  operated,  we  conclude 
the  law  is  not  complied  with.  "^  Repeated  unsuccessful 
efforts  to  operate  a  coupler  in  an  ordinary  and  reasonable 
manner  afford  some  evidence  that  it  is  defective.^  Couplers 
actually  used  or  attempted  to  be  used  at  any  given  time 
must  be  operative  of  their  own  mechanism.*  If  the  coupler 
is  in  fact  defective,  it  is  not  necessary  that  it  shall  be  actu- 
ally used  or  attempted  to  be  used  in  order  to  constitute  a 
violation  of  the  statutes,^  The  statutes  do  not  contemplate 
that  the  employees  shall  be  required  to  go  around,  over  or 
under  the  cars  to  operate  couplers  by  means  of  the  levers 
on  the  opposite  sides  of  cars."  The  preparation  of  a  coup- 
ler for  impact  is  a  part  of  the  coupling  operation  within 
the  purview  of  the  statutes;'  though  the  coupling  of  air  hose 


^o*  United  States  v.  Illinois  Central 
R.  Co.  177  Fed.  801. 

'  Burho  V.  Alinneapolis  &  St.  L. 
Ry.  Co.  121  Minn.  326;  141  N.  W. 
300. 

-  Burho  V.  Minneapolis  &  St.  L.  Ry. 
Co.  121  Minn.  326;  141  N.  W.  300; 
Popplar  V.  Minneapolis,  St.  P.  &  S.  S. 
M.  Ry.  Co.  121  Minn.  413;  141  N.  W. 
798;  Willett  v.  Illinois  Central  R.  Co. 
122  Minn.  532;  142  N.  W.  883; 
Johnston  v.  Chicago  G.  W.  R.  Co. 
(Mo.  App.)  164  S.  W.  260  (dust  in 
pin  hole). 

^  Nichols  V.  Chesapeake  &  O.  Ry. 
Co.  195  Fed.  913;  115  C.  C.  A.  601; 
Montgomery  v.  Carolina  &  N.  W. 
R.  Co.  80  S.  E.  83;  Nashville,  C.  & 
St.  L.  Ry.  Co.  V.  Henry,  158  Ky.  88; 
164  S.  W.  310. 

*  Johnson  v.  Southern  Pacific  Co. 
196  U.  S.  1;  25  Sup.  Ct.  158;  49  L. 
Ed.  363;  United  States  v.  Louisville 
&  N.  R.  Co.  162  Fed.  185;  United 
States  V.  Illinois  Central  R.  Co.  147 
Fed.  801;  101  C.  C.  A.  15;  Chicago, 
M.  &  P.  S.  Ry.  Co.  V.  United  States, 
196  Fed.  882;  116  C.  C.  A.  444; 
Hohenloitner  v.  Southern  Pacific  Co. 
177  Fed.  796. 

'  United  States  v.  Denver  &  R.  G. 
R.  Co.  163  Fed.  519;  9()  C.  C.  A.  329. 

« Central  Vernnont  Ry.  Co.  v. 
United   States,  205  Fed.   40;   123  C. 


C.  A.  308;  Donegan  v.  Baltimore  & 
N.  Y.  Ry.  Co.  165  Fed.  869;  91  C.  C. 
A.  555;  Nichols  v.  Chesapeake  &  O. 
Ry.  Co.  195  Fed.  913;  115  C.  C.  A. 
601;  United  States  v.  Denver  &  R. 
G.  R.  Co.  163  Fed.  519;  90  C.  C.  A. 
329;  Norfolk  &  W.  Rv.  Co.  v.  Hazel- 
rigg,  184  Fed.  828;  107  C.  C.  A.  66; 
United  States  v.  Southern  Pacific  Co. 
167  Fed.  699;  United  States  v.  Chi- 
cago, M.  &  S.  P.  Ry.  Co.  149  Fed. 
486;  United  States  v.  Central  of 
Georgia,  157  Fed.  893;  Norfolk  &  W. 
R.  Co.  V.  United  States.  177  Fed.  623; 
101  C.  C.  A.  249;  Norfolk  &  W.  Ry. 
Co.  V.  Hazclrigg,  184  Fed.  828;  107 
C.  C.  A.  66;  Chicago,  R.  I.  &  P.  Ry. 
Co.  V.  Brown,  185  Fed.  80;  107  C.  C. 
A.  300;  Chicago,  B.  &  0.  Ry.  Co.  v. 
United  States,  211  Fed.  12;  127  C. 
C.  A.  428;  St.  Louis,  I.  M.  &  S.  W. 
R.  Co.  V.  York;  123  S.  W.  376;  Popp- 
lar V.  Minneapolis.  St.  P.  &  S.  S.  M. 
Ry.  Co.  121  Minn.  413;  141  S.  W. 
798.  Per  contra  to  the  extent  of 
defeating  a  recovery  in  an  action  for 
per.sonal  injury.  Gilbert  v.  Bur- 
lington, C.  R.  &  N.  Ry.  Co.  128 
Fed.  529;  Suttle  v.  Choctaw,  O.  & 
G.  R.  Co.  144  Fed.  668;  Union 
Pacific  R.  Co.  V.  Brady,  161  Fed.  719; 
Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg, 
170  Fed.  551,  95  C.  C.  A.  637. 

'Chicago,  M.  &  St.  P.  Ry.  Co.  v. 


CARS    AND    THEIR    EQUIPMENT. 


407 


is  no  part  of  the  coupling.^  The  statutes  prohibit  the  use  of 
a  coupler  operative  only  by  means  of  a  chain  connecting 
with  the  platform  hand  rail.^ 

§  270.  Both  ends  of  every  car  must  be  equipped  with  au- 
tomatic couplers. — A  car  is  not  properly  equipped  unless  it 
is  equipped  on  both  ends  with  automatic  couplers.  "The 
Safety  Appliance  Act  requires  that  each  coupler  on  a  car 
be  operative  in  itself,  so  an  employee  will  not  have  to  go  to 
another  car  to  couple  or  uncouple  the  car  in  question.  The 
provisions  as  to  coupling  and  uncoupling  apply  to  the  coup- 
ler on  each  end  of  every  car  subject  to  the  law.  It  is  wholly 
immaterial  in  what  condition  was  the  coupler  on  the  adjacent 
car  or  any  other  car  or  cars  to  which  each  car  sued  upon  was, 
cr  was  to  be,  coupled.  The  equipment  on  each  end  of  these 
two  cars  must  be  in  such  condition  that  whenever  called 
upon  for  use  it  can  be  operated  without  the  necessity  of 
going  between  the  ends  of  the  cars.  This  is  the  plain  and 
unambiguous  meaning  of  the  statute."-^  And  the  same  is 
true  of  a  locomotive — the  front  end  must  be  equipped  with  a 
coupler  as  well  as  the  rear  end  of  the  tender.-^* 


Voelker,  129  Fed.  522;  Daly  v.  Illinois 
Central  R.  Co.  170  111.  App.  185; 
United  States  v.  Nevada  County  N. 
G.  R.  Co.  167  Fed.  695. 

8  Yost  V.  Union  Pacific  R.  Co.  142 
S.  W.  577.  But  see  Johnson  v. 
Great  Northern  Ry.  Co.  178  Fed. 
643;  United  States  v.  Boston  &  M. 
R.  Co.  168  Fed.  148. 

'  United  States  v.  Toledo  Terminal 
R.  Co.  (unreported)  United  States  v. 
Southern  Pacific  Co.  (unreported.) 

=1  Chicago,  etc.,  Ry.  Co.  v.  Voelker, 
129  Fed.  Rep.  522;  65  C.  C.  A.  65; 
70  L.  R.  A.  264;  {Contra,  United 
States  V.  Philadelphia  &  R.  Ry.  Co., 
223  Fed.  215,  unless  the  front  end  is 
designed  for  coupling:)  United  States 
V.  Philadelphia  &  R.  Ry.  Co.  160  Fed. 
696;  United  States  v.  Central  of 
Georgia,  157  Fed.  893;  United  States 
V.  Southern  Pacific  Co.  167  Fed.  699 
United  States  v.  Baltimore  &  O.  R 
Co.  170  Fed.  456;  United  States  v 
Denver  &  R.  G.  Co.  163  Fed.  519 
United  States  v.  Wabash  R.  Co 
Appendix  G;  United  States  v.  Phila- 
delphia &  R.  Ry.  Co.,  Appendix  G 
United  States  v.  Lehigh  Valley  R 
Co.,  Appendix  G;  United  States  v 
Pennsylvania  R.  Co.,  Appendix  G 
United  States  v.  Louisville  &  N.  R, 
Co.  162  Fed.  185;  United  States  v 


Chicago  Great  W.  Ry.  Co.  162  Fed. 
775;  United  States  v.  Atchison,  T. 
&  S.  F.  Ry.  Co.,  Appendix  G;  United 
States  V.  Nevada  County,  N.  G.  R. 
Co.  167  Fed.  695;  United  States  v. 
Atchison,  T.  &  S.  F.  Ry.  Co.  167  Fed. 
696;  United  States  v.  Chesapeake  & 
O.  Ry.  Co.,  Appendix  G;  United 
States  V.  Southern  Pacific  Co.  167 
Fed.  699;  United  States  v.  Southern 
Ry.  Co.  170  Fed.  1014;  United  States 
V.  Baltimore  &  O.  R.  Co.  170  Fed. 
456;  United  States  v.  Pennsylvania 
R.  Co.,  Appendix  G;  United  States  v. 
Southern  Pacific  Co.,  Appendix  G; 
United  States  v.  Denver  &  R.  G. 
R.  Co.  163  Fed.  519. 

A  man  engaged  in  connecting  or 
disconnecting  air  hose  between  the 
cars  is  engaged  in  coupling  or  un- 
coupling cars  within  the  meaning  of 
the  statute,  if  it  is  necessary  for  him 
to  connect  or  disconnect  that  hose 
in  order  to  connect  or  disconnect  the 
cars.  United  States  v.  Boston,  etc., 
R.  Co.  168  Fed.  148  (see  Appendix  G). 

The  couphng  must  be  in  such  a 
condition  that  it  can  be  operated 
with  a  reasonable  effort,  and  not 
by  a  great  effort  without  going 
between  the  cars.  L^nited  States 
v.  Atchison,  etc.,  R.  Co.  167  Fed. 
696  (see  Appendix  G). 


408  FEDERAL  SAFETY  APPLIANCE  ACT. 

§  271.  Uncoupling. — The  coupler  must  be  sufficient  to 
enable  the  employee  to  uncouple  the  car  without  going  be- 
tween the  cars  coupled,  for  that  purpose.-^  If,  therefore,  a 
coupler  couples  by  impact,  but  cannot  be  uncoupled  without 
the  employee  going  between  the  cars,  it  is  not  sufficient.^^ 

§  272.  Erroneous  instructions  concerning  heighth  of  draw 
bars.— An  instruction  is  erroneous  which  declares  that  the 
law  requires  draw  bars  of  a  fully  loaded  car  to  be  of  the 
height  of  thirty-one  and  one-half  inches,  and  that  if  either  of 
the  cars  causing  the  injury  to  the  emploj^e  varied  from  the 
requirement  the  defendant  railroad  had  failed  in  the  perform- 
ance of  its  duty;  especially  where  the  evidence  of  the  rail- 
road company  showed  that  the  draw  bar  of  the  fully  loaded 
car  was  thirty-two  and  one-half  inches  in  height.  A  verdict 
for  the  plaintiff  on  such  a  condition  of  the  record  cannot 
stand.  And  so  it  is  error  to  refuse  to  charge  the  jury  "that 
when  one  car  is  fully  loaded  and  another  car  in  the  same 
train  is  only  partially  loaded,  the  law  allows  a  variation  of 

•-'•Southern   R.    Co.    v.    Crockett,       Co.    162    Fed.    R«p.    410     (Appen- 

OQ4  TT    a    79-.  -iA  cj„r,    Pt    QQ7 •  KSi      ^^^   ^^  '    United   States   v.  Chesa- 
234  U.  S.  72o;  34  Sup.  Ct.  897;  58      ^^^j^^^  ^^^  ^^  ^^    (Appendix  G) 

L.  Ed.   1564  United  States  v.  Southern  Pac.  Ry 

Co.   167   Fed.   699    (Appendix  G) 

22  United  States  v.  Chicago,  etc.,  United  States  v.  Atchison,  etc. 
Ry.  Co.  149  Fed.  Rep.  486;  United  R.  Co.  167  Fed.  696  (see  Appen 
States  V.  Great  Northern  Ry.  Co.  dix  G)  ;  Norfolk  &  W.  Ry.  Co 
150  Fed.  Rep.  229;  United  States  v.  United  States,  177  Fed.  623 
V.  Southern  Ry.  Co.  135  Fed.  Rep.  United  States  v.  Denver  &  R.  G 
122;  United  States  v.  El  Paso,  Co.  163  Fed.  519;  90  C.  C.  A.  329 
etc.,  R.   Co.  Appendix  G.  Johnson   v.    Southern   Pacific,    196 

23  United  States  v.  Central  of  U.  S.  1;  25  Sup.  Ct.  158;  49 
Ga.  Ry.  CV>.  157  Fed.  Rep.  893;  L.  Ed.  363;  Chicago,  M.  &  St.  P. 
United"  btateg  v.  Pennsylvania  R.  Ry.  Co.  v.  Voelker,  129  Fed.  522; 
Co.  162  Fed.  Rep.  408  (Appen-  United  States  v.  Chicago,  M.  & 
dix  G)  ;  United  States  v.  Philadel-  St.  P.  Ry.  Oo.  149  Fed.  486; 
phia,  etc.,  R.  Co.  162  Fed.  Rep.  United  iStates  v.  Nevada,  Co.  N.  G. 
408  (Appendix  G)  ;  United  States  Ry.  Co.  167  Fed.  695;  Southern 
V.  Philadelpliia,  etc.,  R.  Co.  162  Ry.  Co.  v.  Simmons,  105  Va.  651; 
Fed.     Rep.     405      (Appendix     G)  ;  55  S.  E.  459. 

United  States  v.  Leliigh  Valley  R. 


CARS    AND    THEIR    EQUIPMENT.  409 

full  three  inches  between  the  center  of  the  draw  bars  of  such 
cars,  without  regard  to  the  amount  of  weight  in  the  partially 
loaded  car."-*  So  an  instruction  as  follows  is  erroneous: 
"The  court  charges  you  that  the  act  of  Congress  allows  a 
variation  in  height  of  three  inches  between  the  centers  of 
draw  bars  of  all  cars  used  in  interstate  commerce,  regardless 
of  whether  they  are  loaded  or  empty,  the  measurement  of 
such  height  to  be  made  perpendicularly  from  the  top  of  the 
rail  to  the  center  of  the  draw  bar  shank  or  draft  line."^^ 
The  coupler  on  the  front  end  of  a  locomotive  must  be  of  the 
proper  height.-^* 

§  273.  Construction  of  Section  5.— The  Supreme  Court  of 
the  United  States  has  thus  construed  Section  5  so  far  as  it  re- 
lates to  couplings:  "We  think  that  it  [Section  5]  requires 
the  center  of  the  draw  bars  of  freight  cars  used  on  standard 
gauge  railroads  shall  be,  when  the  cars  are  empty,  thirty- 
four  and  one-half  inches  above  the  level  of  the  tops  of  the 
rails;  that  it  permits,  when  a  car  is  partly  or  fully  loaded, 
a  variation  in  the  height  downward,  in  no  case  to  exceed  three 
inches;  that  it  does  not  require  that  the  variation  shall  be 
in  proportion  to  the  load,  nor  that  a  fully  loaded  car  shall 
exhaust  the  full  three  inches  of  the  maximum  permissible 
variation  and  bring  its  draw  bars  down  to  the  height  of  thirty- 
one  and  one  half  inches  above  the  rails.  If  a  car,  when 
unloaded,  has  its  draw  bars  thirty-four  and  one-half  inches 
above  the  rails,  and,  in  any  stage  of  loading,  does  not  lower 
its  draw  bars  more  than  three  inches,  it  complies  with  the 
requirements  of  the  law.  If,  when  unloaded,  its  draw  bars 
are  of  greater  or  less  height  than  the  standard  prescribed  by 

2^  This     request,     taken     in     con-  Taylor,  210  U.  S.  281;  28  Sup.  Ct. 

nection  with  the  instruction  that  the  Rep.  616;  United  States  v.  Atchison, 

draw  bar  should  be  of  the  height  pre-  T.   &   S.   F.   Ry.   Co.,   Appendi.x  G; 

scribed   by   this   act,    expressed   the  St.   Louis,   I.   M.   &   S.   Ry.   Co.   v. 

true    rule,    and    should    have    been  Neal,  83  Ark.  591;  78  S.  W.  220. 
given."  =5' Chicago,   M.  &   P.  S.  Ry.  Co. 

-^  "It   is   based    upon   the   theory  v.    United    States,     196    Fed.    882; 

that  the  height  of  the  draw  bars  of  116  C.  C.  A.  444;  Southern  R.  Co.  v. 

unloaded  cars  may  vary  three  inches,  Crockett,  234  U.  S.  725;  34  Sup.  Ct. 

while  the  act,  as  we  have  said,  re-  897;  58  L.  Ed.  1564;  Southern  R.  Co. 

quires  that  the  height  of  the  draw  v.  United  States,  222  U.  S.  20;  32 

bars  of  unloaded  cars  shall  be  uni-  Sup.  Ct.  2;  51  L.  Ed.  681;  3  N.  C.  C. 

form."     St.  Louis,  etc.,  Ry.  Co.  v.  822. 


410  FEDERAL   SAFETY  APPLIANCE  ACT. 

the  law,  or  if,  when  wholly  or  partially  loaded,  its  draw  bars 
are  lowered  more  than  the  maximum  variation  permitted, 
the  ear  does  not  comply  with  the  requirements  of  the  law."-* 
Not  only  do  the  provisions  of  the  statutes  apply  to  draw 
bars  or  couplers,  but  also  require  them  to  be  placed  on 
locomotive  engines.-*'*  The  statute  applies  to  the  coupler 
on  the  front  end  of  a  locomotive.-'^T 

§  274.  Insufficient  operation  of  coupler. — The  statute 
applies  to  an  instance  of  insufficient  operation  of  a  proper 
coupler.-^ 

§  275.    Improper    operation    of    sufficient    coupler. — The 

statute  only  makes  it  unlawful  to  use  a  car  which  is  not 
equipped  with  the  required  couplers,  and  it  cannot  be  held 
that  it  is  unlawful  for  a  carrier's  employees  to  fail  to  adjust 
the  appliance  with  which  the  car  has  been,  and  at  the  time 
is  properly  equipped.  "The  act  requires  equipment,  and, 
although  there  is  no  express  language  to  that  effect,  the  act 
must  be  construed  to  mean  equipment  which,  if  there,  is 
capable  of  being  operated;  but  no  penalty  is  imposed,  if, 
being  there,  it  is  not  in  fact  efficiently  operated  by  those  in 
and  not  the  proper  manipulation  of  that  equipment  by  the 
employees."^* 


-^  St.  Louis,  etc.,  Ry.  Co.  v.  Tay-  the  lowered  draw  bar  to  the  legal 

lor,  210  U.  S.  281;  28  Sup.  Ct.  Rep.  standard.    St.  Louis,  I.  M.  &  S.  Ry. 

616;  Atchison,  T.  &  S.   F.  Rv.  Co.  Co.  v.  Taylor,  210  U.  S.  281;  28  Sup. 

V.  United  States,  198  Fed.  637;  117  Ct.  116;  52   L.  Ed.  1061. 

C.  C.  A.  341.  "  Taggert  v.  Republic  Iron  &  Steel 

2«'  Southern  Ry.  Co.  v.  Crockett,  Co.  141  Fed.  910;  Elmore  v.  Seaboard 

234  U.  S.  725;  34  Sup.  Ct.  899;  58  L.  Air  Line  Ry.   Co.    130  N.   C.   506; 

Ed.  1564.  41  S.  E.  786;  Burho  v.  Minneapolis 

2«t  Chicago,  M.  &  P.  S.  Ry.  Co.  v.  &   St.   L.   Ry.   Co.    121    Minn.   326; 

United  States,  196  Fed.  8S2;  116  C.  141    N.    W.    300;    United    States   v. 

C.  A.  444;  Southern  R.  Co.  v.  Crock-  Central  of  Georgia  R.  Co.  157  Fed. 

ett,  234  U.  S.  725;  34  Sup.  Ct.  899;  893.      Contra,  Ignited  States  v.  Illi- 

58  L.  Ed.  1564.  nois  Central  R.  Co.  156  Fed.  Rep.  182. 

"Shims"    are    metallic    wedges    of  ^*  United   States   v.   Chicago,   etc., 

different  thickness  employed  to  raise  R.  Co.  156  Fed.  Rep.  182;  Popplar 


CARS    AND    THEIR    EQUIPMENT.  ^H 

§  276.  Preparation  of  coupler  for  coupling. — The  act  of 
coupling  and  the  preparation  of  the  coupler  for  the  impact 
are  not  to  be  distinguished.  Such  preparation  and  impact 
are  so  connected  that  they  are  indispensable  parts  of  the 
larger  act  to  which  the  statute  applies  and  regulates,  the 
performance  of  which  Congress  intended  to  be  relieved  from 
unnecessary  risk  and  danger  to  life  and  limb.-'' 


§  277.  "M.  C.  B.  defect  card."— The  placing  of  a  "M.  C. 
B.  defect  card"  upon  a  car  with  an  annotation  thereon  of 
defects  forbidden  by  the  Safety  Appliance  Act,  thereby  in- 
forming all  companies  receiving  it  that  the  company  so 
placing  the  card  on  the  car  sent  such  car  out  in  a  defective 
condition  and  that  the  companies  receiving  and  hauling  the 
car  would  not  hav^  to  account  to  the  former  company  for 
the  particular  defect  noted  on  the  car,  is  such  a  deliberate 
violation  of  the  statute  as  amounts  to  a  defiance  of  the  law.^" 

§  278.  Receiving  an  improperly  equipped  foreign  car. — 
If  a  foreign  car  be  not  equipped  with  automatic  couplers,  a 
railroad  company  to  whom  it  is  tendered  for  transportation 


V.   Minneapolis,   St.   P.  &  S.   S.   M.  G).    A  bad  order  card  is  placed  on  a 

Ry.  Co.  121  Minn.  413;  141  N.  W.  car  by   the   company's   inspector  to 

798;  Willett  v.  Illinois  Cent.  R.  Co.  indicate   that   the   car   must   be   re- 

122  Minn.  513;  142  N.  W.  883.  paired  before  moving.     Such  a  card 

-' Chicago,  etc.,  Ry.  Co.  V.  Voelker,  is  never  employed  as  notice  to  con- 

129  Fed.  Rep.  522;  65  C.  C.  A.  65;  necting  lines.     See  United  States  v. 

70  L.  R.  A.  264.    See  note  21  of  this  Southern  Ry.  Co.  135  Fed.  122,  and 

chapter;    United    States    v.    Nevada  United   States  v.   Chicago,   R.   I.   & 

Co.  N.  G.  R.  Co.  167  Fed.  695.  P.  Ry.  Co.  173  Fed.  684.    But  where 

'"  United   States  v.   Southern   Ry.  a  bad  order  card  was  placed  on  a  car, 

Co.  135  Fed.  Rep.  122;  St.  Louis  &  S.  and  it  was  then  hauled  with  chains; 

F.  R.  Co.  V.  Delk,  158  Fed.  931;  86  and  the  plaintiff  was  riding  on  the 

C.  C.  A.  95;  14  Am.  &  Eng.  Ann.  Cas.  engine    which    ran    over    the    chain, 

233,  reversed,  but  not  on  this  point;  thereby  injuring  him,  it  was  held  that 

Delk  v.  St.  Louis  &  S.  F.  R.  Co.  220  the   Safety   Appliance   Act   did    not 

U.  S.  580;  31  Sup.  Ct.  617;  55  L.  Ed.  apply  to  the  case.    Dodge  v.  Chicago, 

590;  United  States  v.  Chicago,  etc.,  G.  W.  R.  Co.  (Iowa)  146  N.  W.  14. 
R.  Co.  173  Fed.  684  (see  Appendix 


412  FEDERAL   SAFETY   APPLIANCE   ACT. 

by  a  connecting  line  is  not  bound  to  receive  it  for  trans- 
portation over  its  lines,  and  may  lawfully  refuse  to  accept 
it  until  it  is  properly  equipped.^^  But  if  it  does  receive  it 
and  uses  it  or  hauls  it  upon  its  tracks,  the  receiving  com- 
pany will  be  liable.^- 

§  279.  Question  for  jury. — It  is  a  question  for  the  jury 
whether  the  tender  and  car  between  which  the  employee  was 
injured  were  at  the  same  time  engaged  in  interstate  com- 
merce ;  and  they  may  be  instructed  that  if  they  so  find,  the 
act  of  Congress  was  applicable,^^  and  it  is  also  a  question 
whether  or  not  the  coupler  was  in  workable  order.^^*  It  is 
also  a  question  for  the  jury  whether  a  defect  in  the  coupler 
caused  the  injury  of  the  plaintiff.^^"" 

§  280.  When  a  Federal  question  is  presented. — Where  the 
question  arose  whether  or  not  a  Federal  question  was  in- 
volved in  a  case  brought  under  the  Saf  et}^  Appliance  Act,  the 
Supreme  Court  announced  this  rule:  "Where  a  party  to  a 
litigation  in  a  state  court  insists,  by  way  of  objection  to  or 


3'  See   section   3    of    act.      United  &  O.  Ry.  Co.  91  Kan.  684;  139  Pac. 

States  V.   Southern  Pacific   Co.    167  410. 
Fed.  699.  Where  couplings   had   been   made 

^^  United   States  v.   Chicago,   etc.,  daily  for  more  than  a  year  on  a  cer- 

E,y.  Co.   149  Fed.  Rep.  486;  United  tain    curve    without    any    failure    to 

States  V.   Chicago,   G.   W.   Ry.   Co.  couple  automatically  on  impact;  and 

162  Fed.  775;  Crawford  v.  New  York  at  the  time  of  the  accident  the  draw 

Central  &  H.  R.  R.  Co.  10  Am.  Neg.  bars  of  the  cars  to  be  coupled  had 

166;  see,  also,  United  States  v.  Chica-  several    inches    of    play    or    lateral 

go,  etc.,  Ry.  Co.  143  Fed.  Rep.  373.  motion,  and  was  so  far  out  of  line 

''  Philadelphia,    etc.,     R.    Co.    v.  that  the  cars  would  not  couple  auto- 

Winkler,  4  Penn.  (Del.)  387;  56  Atl.  matically  on  impact  on  the  curve,  it 

Rep.    112,   affirming  4   Penn.    (Del.)  was  held  that  the  court  could  not  say 

80;    53    Atl.    Rep.    90;    Voelkcr    v.  as  a  matter  of  law  that  the  couplers 

Chicago,  etc.,  R.  Co.  116  Fed.  Rep.  were   defective   within   the   meaning 

867;   Crawford   v.    New   York,   etc.,  of   the   statute,   nor   that   the   coup- 

R.  Co.  10  Am.  &  Eng.  Neg.  Cas.  166.  ling  was  attempted  at  an  improper 

''*  Nashville,   C.   &  St.   L.   Ry.   v.  place.       Those    were    questions     for 

Henry,  158  Ky.  88;  164  S.  W.  310.  the  jury.     Willett  v.  Illinois  Central 

'•Of  Thornbro   v.   Kansas  City,   M.  R.  Co.  122  Minn.  513;  142  N.  W.  883. 


CARS    AND    THEIR    EQUIPMENT.  4^3 

requests  for  instructions,  upon  a  construction  of  a  statute  of 
the  United  States  which  will  lead,  or,  on  possible  findings  of 
fact  from  the  evidence  may  lead,  to  a  judgment  in  his  favor, 
and  his  claim  in  this  respect,  being  duly  set  up,  is  denied  by 
the  highest  court  of  the  state,  then  the  question  thus  raised 
may  be  reviewed  by  this  court.  The  plain  reason  is  that  in 
all  such  cases  he  has  claimed  in  the  state  court  a  right  or 
immunity  under  a  law  of  the  United  States  and  it  has  been 
denied  him.  Jurisdiction  so  clearly  warranted  by  the  con- 
stitution and  so  explicitly  conferred  by  the  act  of  Congress 
needs  no  justification.  But  it  may  not  be  out  of  place  to  say 
that  in  no  other  manner  can  a  uniform  construction  of  the 
statute  laws  of  the  United  States  be  secured,  so  that  they 
shall  have  the  same  meaning  and  effect  in  all  the  states  of 
the  Union.  "^*  But  merely  because  an  action  for  personal 
injuries  is  based  upon  the  Federal  statute  has  been  held  not 
enough  to  entitle  the  defendant  to  have  the  cause  removed 
to  the  United  States  Court.=^*^ 

^'St.  Louis,  etc.,  R.  Co.  v.  Tay-  St.    Rep.    452;    84    Miss.    4G.5;    36 

lor,    210   U.   S.   281;    28    Sup.   Ct.  So.   Rep.   689;    reversing  84   Miss. 

Rep.  616;  52  L.  Ed.  1061.  465;    36   So.   Rep.    689;    Rector   v. 

The  court  said  the  above  stated  City  Deposit  Bank,  200  U.  S.  405; 
principles  were  derived  from  the  26  Sup.  Ct.  Rep.  289;  50  L.  Ed. 
following  cases:  IMcCormick  v.  527;  Eau  Claire  National  Bank  v 
Market  Bank,  165  U.  S.  538;  17  527;  Illinois  Cent.  R.  Co.  v.  Mc- 
Sup.  Ct.  Rep.,  433.  41  L.  Ed.  817;  Kendree,  203  U.  S.  514;  27  Sup. 
affirming  162  111.  100;  44  N.  E.  Ct.  Rep.  153;  51  L.  Ed.  298; 
Rep.  381;  California  Bank  v.  Eau  Claire  National  Bank  v. 
Kennedy,  167  U.  S.  362;  17  Sup.  Jackman,  204  U.  S.  522:  27  Sup. 
Ct.  Rep.  831;  42  L.  Ed.  198,  re-  Ct.  Rep.  391:  51  L.  Ed.  596; 
versing  101  Cal.  495;  40  Am.  St.  affirming  125  Wis.  465;  104  N.  W 
Rep.  69;  35  Pac.  Rep.  1039;  San  Rep.  98;  Hammond  v.  Whit- 
Jose  Land,  etc..  Co.  v.  San  Jose  tredge,  204  U.  S.  538;  27  Sup. 
Ranch  Co.  189  U.  S.  177;  23  Sup.  Ct.  Rep.  396;  51  L.  Ed.  606; 
Ct.  Rep.  487;  47  L.  Ed.  765;  affirming  180  Mass.  45;  75  N.  E. 
affirming    129    Cal.    673;    62    Pac.  ^«P-  222. 

Rep.   269;    Nutt  v.   Ivnut,   200   U.  34a  Myrtle   v.    Nevada,    C.   &    0. 

S.   12;   26  Sup.   Ct.   Rep.  216;   50  %•  Co.   137  Fed.   193;    St.   Louis, 

L.    Ed.    348;     affirming    83    Miss.  L    M.    &    S.    R.    Cb.    v.    Neal.    83 

365;    35    So.   Rep.    686;    102   Am.  Ark.   591;    98   S.   W.    968;    Inter- 


414 


FEDERAL.   SAFETY  APPLIANCE   ACT. 


§  281.  State  statute  on  same  subject  applicable  to  intra- 
state commerce. — Possibly  a  state  statute  requiring  auto- 
matic couplers  upon  cars  used  within  a  state  might  be  en- 
forced in  a  suit  to  recover  damages  caused  by  a  failure  to 
equip  cars  used  in  interstate  commerce.^^ 

§  282.  Handholds — Through  train. — The  statute  requires 
cars  to  be  furnished  with  handholds.  Cars  in  a  train  operated 
by  a  railway  company  engaged  in  the  transportation  of 
freight  across  a  state  and  beyond  its  boundaries  is  a 
"through  train,"  and  every  car  in  it  must  be  furnished  with 
"handholds."  A  failure  to  furnish  them  is  negligence 
-per  se.^^  A  brakeman  using  a  defective  handhold  does  not 
assume  the  risk  of  defectiveness.^^  These  handholds  or  grab- 
irons  must  be  at  both  ends  of  the  car^*  on  its  sides.^^*  The 
grabirons  must  be  secure ;  but  if  each  end  of  the  car  has 
some  other  appliance,  such  as  a  ladder  or  brake  lever,  which 
affords  the  same  security  as  if  a  grabiron  were  at  that 
point,  the  statute  is  not  violated.^^  Passenger  coaches  must 
have  proper  grabirons,*"    "The  purpose  of  requiring  grab- 


national  &  G.  N.  Ry.  Co.  V.  Elder,  99 
S.  W.  856;  Southern  Ry.  Co.  v.  Car- 
son, 194  U.  S.  137;  24  Sup.  Ct.  609 
48  L.  Ed.  907,  affirming  68  S.  C.  55 
46  S.  E.  525. 

^^  See  Voelker  v.  Chicago,  etc.,  R 
Co.  116  Fed.  Rep.  867;  Kansas  City 
etc.,  R.  Co.  V.  Flippo,  138  Ala.  487 
35  So.  Rep.  457;  contra,  Rio  Grande 
So.  R.  Co.  V.  Campbell,  44  Colo.  1 
96  Pac.  Rep.  986;  State  v.  Adams  Exp 
Co.  170  Ind.  138;  85  N.  E.  337,  936 
State    V.    Missouri     Pac.     Ry.     Co 
11     S.    W.    Rep.     500;     Devine     v 
Chicago  &  C.  R.  Co.  168  111.  App 
450;  Luken  v.  Lake  Shore  &  M.  S 
Ry.  Co.  248  III.  377;  94  N.  E.  175 
140  Am.  St.  220;  21   Am.   Cas.  82 
But  see  Blanchard  v.   Detroit,   etc. 
R.   Co.    139  Mich.  694;   103   N.   W 
Rep.   170;   12  Det.  Leg.  N.  30,  and 
Taylor  v.  Boston,  etc.,   R.  Co.   188 
Mass.  390;  74  N.  E.  Rep.  591.     See 
section    1.50a.     But  a  state  statute 
requiring  handholds  on  the  sides  of 
cars    is    supiTsedcd    by    the    Federal 
statute.     Southern  Ry.  Co.  v.  ]{.  R. 
Com.  rind.)  109  N.  E.  759;  Southern 
R.  R.  Co.  V.  H.  1{.  Com.  236  U.  S. 
439;  35  Sup.  Ct.  301;  .W  L.  Ed.  — . 

'•  Malott  V.  Hood,  99  III.  App.  360, 
affirmed  201  III.  202;  66  N.  E.  Rep. 
247;  TInited  States  v.  Boston  & 
Maine  R.  Co.  (Appendix  G);  United 


States  V.  Terminal,  etc.  (Appendix  G); 
Chicago,  etc.,  R.  Co.  v.  United  States, 
165  Fed.  Rep.  423;  United  States 
V.  Southern  Ry.  Co.  167  Fed.  699 
(see  Appendix  G);  United  States  v. 
Atlantic  Coast  Line  R.  Co.  (see 
Appendix  G);  Wabash  Ry.  Co.  v. 
United  States,  168  Fed.  Rep.  1 
(decided  February  3,  1909);  see,  also 
section  251,  note  34,  and  sections 
299,  301. 

"  Coley  V.  North  Carolina  R.  Co. 
128  N.  C.  534;  39  S.  E.  43. 

'8  United  States  v.  Illinois  Central 
R.  Co.  166  Fed.  997;  United  States  v. 
Chicago  &  N.  W.  Ry.  Co.  157  Fed. 
616. 

"*•  United  States  v.  Baltimore  & 
Ohio  R.  Co.  184  Fed.  94;  United 
States  V.  Chicago  &  N.  W.  Ry.  Co. 
157  Fed.  616;  Southern  Ry.  Co.  v. 
Railroad  Commission,  179  Ind.  23; 
100  N.  E.  337. 

••"•United  States  v.  Boston  &  M. 
R.  Co.  168  Fed.  148. 

^"  Norfolk  &  W.  Ry.  Co.  v.  United 
States,  177  Fed.  623. 


CARS    AXD    THEIR    EQUIPMENT.  ^-jC 

irons  or  handholds  to  be  placed  at  the  end  of  the  cars  used  in 
interstate  commerce  seems  to  have  been  to  afford  greater 
security  for  employees  when  they  are  in  the  act  of  coupling 
or  uncoupling  cars.""  No  particular  kind  is  required,  if 
those  used  are  sufficient  to  protect  persons  coupling  and  un- 
coupling cars.*^* 

§  283.  Handholds  on  roof  of  car — Sill  steps — Hand- 
brakes— Ladders — Running  boards. — The  handholds  or 
grabirons  discussed  in  the  next  preceding  section  are  those 
at  the  end  of  the  car  so  as  to  enable  the  brakemen  to  safely 
couple  the  cars.^'  The  statute  of  1910,  supplemental  to  the 
Safety  Appliance  Acts  of  1893  and  1903,  provides  that  "it 
shall  be  unlawful  for  any  common  carrier  subject  to"  their 
provisions  "to  haul,  or  permit  to  be  hauled  or  used,  on  its 
line  any  car  subject  to"  its  provisions  not  "equipped  with 
secure  sill  steps  and  efficient  hand  brakes;  all  cars  re- 
quiring secure  ladders  and  secure  running  boards"  must 
be  "equipped  with  such  ladders  and  running  boards,  and 
all  cars  having  ladders"  must  be  "equipped  with  secure 
handholds  or  grabirons  on  their  roofs  at  the  top  of  such 
ladders."  "In  the  loading  and  hauling  of  long  commodi- 
ties, requiring  more  than  one  car,  the  handbrakes  may  be 
omitted  on  all  save  one  of  the  cars  while  they  are  thus  com- 
bined for  such  purpose."  The  Interstate  Commerce  Com- 
mission is  required  to  "designate  the  number,  dimensions, 
location,  and  manner  of  application  of  the  appliances 
provided  for"  in  the  above  quotation,  and  also  in  section 
four  of  the  Act  of  1893,  and  to  "give  notice  of  such  desig- 
nation to  all  common  carriers  subject  to  the  provisions"  of 
the  statute  by  such  means  as  they  may  deem  proper.  There- 
after the  number,  location,  dimensions,  and  manner  of 
application  as  designated  by  the  Commission  "shall  remain 
as  the  standards  of  equipment  to  be  used  on  the  cars  subject 

"Dawson    v.    Chicago,    R.    I.    &  v.   Illinois   Central   R.   Co.    170   III. 

P.    Ry.    Co.    114   Fed.   870;   United  App.   185.     As  to  grab  irons  under 

States  V.  Illinois  Central  R.  Co.  166  Indiana   statute,    see    Southern    Ry. 

Fed.  997;  United  States  v.  Wabash  Co.    v.    Railroad    Commission,    U9 

Terminal     Ry.     Co.,    Appendix     G;  Ind.  23;  100  N.  E.  337,  and  such  is 

United   States  v.   Boston  &   M.   R.  the    rule    under    the    Federal    Act. 

Co.  168  Fed.  148.  United  States  v.  Baltimore  &  Ohio 

^'»  Spokane    &    I.    E.    R.    Co.    v.  R.  Co.  184  Fed.  94. 
United    States,    210    Fed.    243;    127  « Dawson  v.  Chicago,  R.  I    &  P 

CCA.  61.  Ry.  Co.  114  Fed.  870;  section  4  of 

The  Illinois  statute  requires  them  Act  of  1893. 
to  be  on  the  end  of  tenders.    Daly 


416  FEDERAL.   SAFETY   APPLIANCE   ACT. 

to  the  provisions  of"  the  statute,  "unless  changed  by  an 
order  of  said  Interstate  Commission,  to  be  made  after  full 
hearing  and  good  cause  shown."  Failure  to  comply  with 
the  requirements  of  this  order  is  an  offense.  After  hearing 
the  Commission  is  empoAvered  to  "modify  or  change,  and 
to  prescribe  the  standard  height  of  drawbars  and  to  fix  the 
time  within  which  such  modification  or  change  shall  become 
effective  and  obligatory."*^ 

§  284.  Air  hose,  coupling-  chain  and  appliances  obviating 
necessity  for  handholds. — The  necessity  of  handholds  on 
passenger  equipment  is  not  obviated  by  the  presence  there- 
on of  air,  steam,  or  signal  hose,  coupling  chains,  handbrake 
shafts,  or  other  appliances  affording  some  measure  of  se- 
curity to  employees  "while  coupling  and  uncoupling  cars.** 
The  necessity  of  handholds  in  the  sides  near  the  rear  ends 
of  tenders  is  not  obviated  by  the  fact  that  uncoupling  levers 
extend  practically  across  the  rear  ends  thereof,  in  such  a 
position  and  of  such  a  character  as  to  serve  as  handholds, 
unless  it  be  shown  (and  the  burden  is  on  the  defendant  to 
do  so)  that  handholds,  if  applied,  would  not  contribute  to  the 
greater  security  of  employees  in  coupling  and  uncoupling 
cars.*^ 

§  285.  What  is  and  is  not  a  handhold  a  question  for  the 
jury — Expert  testimony — Personal  examination  by  jury. — 

Since  the  statute  does  not  definitely  and  distinctly  define 
what  is  a  secure  grabiron,  it  becomes  a  question  for  the  jury 
to  determine  whether  or  not  the  device  provided  for  the 
purpose  of  a  grabiron  was  a  secure  grabiron  or  handhold 
within  the  meaning  of  the  statute.*^  Thus  in  one  case  the 
court  charged  the  jury  as  follow^s:  "You  have  heard  the 
testimony  in  this  case,  and  you  have  examined  the  hand- 
holds in  question,  and  it  is  for  you  to  say  from  that  testi- 
mony and  from  your  personal  examination  of  the  cars 
whether  the  appliances  provided  l)y  this  company  complies 
v»'ith  the   act  of  Congress,  whether  it   affords  that   safety 

♦3  For    air    brakes,    9e<»    Section  ^*  United  States  v.  Norfolk  &  W. 

303.     A.   man   enj^^ged  in   connect-       R.  Co.  184  Fed.  99. 
ing  tlie  air  hose  between  the  cars  "  United  States  v.  Baltimore  &  0. 

is  enfraped   in  coupling  or  uncoup-  ■^•, p°;  }'    ,    S,,\  ».  ,  •  n, 

1-        41  ui  ;„   +v,«  ™«or,;J„  ^"United    States    v.    Atchison,    T. 

Img  the   cars   w.thm  the  meaning  ^  ^  ^  ^^   (unreported);  United 

of   the   statute,    if   it   is  necessary  .states  v.  Baltimore  &  Ohio  R.  Co.  (un- 

for   him   to   connect  or   disconnect  reported);  United  States  v.  Spokane 

that   ho.se   in   order   to  connect   or  &  I.  E.  R.  Co.  (unreported). 
disc/)nnect  the  cars.    Ignited  iStateq 
V.    Boston   &   M.   R.   Co.    168    Fed. 
US. 


CARS    AND    THEIR    EQUIPMENT.  ^^J 

and  protection  to  employees  wliicli  tlic  law  contemplates  and 
requires."  Of  this  instruction  it  was  said  on  appeal:  "We 
are  of  the  opinion  that  the  plaintiff  in  error  has  no  valid 
ground  of  objection  to  those  instructions  and  agree  with 
the  trial  judge  that  the  question  as  to  whether  the  openings 
in  the  buffer  on  the  ends  of  the  cars  afforded  the  security 
intended  by  the  act  of  Congress  was  not  the  subject  of  ex- 
pert testimony,  and  that  the  personal  inspection  of  such 
openings  by  sensible  jurors  was  a  safer  guide  to  the  truth  in 
regard  to  the  matter  than  the  mere  opinion  of  witnesses."*^ 

^'  Spokane  &  I.  E.  R.  Co.  v.  United 
States,  210  Fed.  243;  127  C.  C.  A.  61. 


CHAPTER  XVII. 
REPAIES. 


SECTION 

286.  Degree  of  diligence  to  make 
repairs. 

Use  of  diligence  to  discover 
defects — Want  of  knowledge 
of  defect. 

Duty  to  maintain  car  in  re- 
pair is  an  absolute  one. 

Presumption — Diligence  to  dis- 
cover defects  and  make  re- 
pairs in  transit. 

Distinction  between  an  action 
to  recover  a  penalty  and  to 
recover  damages. 

Cars  in  transit — Construction 
of  statute. 

Hauling  car  to  nearest  re- 
pairing point. 

Destination  of  car  nearer  than 
repair  shops. 

Removal  from  repair  point 
without  statutory  repairs 
being  made. 

Repairing  cars  in  transit 

Repairs  during  journey. 


287. 


288. 
289. 


290. 


291. 
292. 
293. 


294. 


295. 
296. 


SECTION 

297.  Establishing   repair  shops  and 

material. 

298.  Knowledge    of    defect    not    an 

element  of  the  defense. 

299.  Failure    to    provide    or    repair 

defective  handholds. 

300.  Burden  to  show  right  to  move 

defective  car. 

301.  Use  of  "shims" — Common-law 

duty  of  master  not  appH- 
cable — Fellow  servant's  neg- 
lect— Construction  of  statute 
— Hand  grips. 

302.  Repairing  couplers — Other  act 

of  negligence  aiding  negli- 
gence with  reference  to  coup- 
lers. 

303.  Failure  to  equip  train  with  air 

brakes. 
303a.  Air   brakes   on   transfer  trains 

from  one  yard  to  another — 

"Train"  defined. 
303b.  Trains  too  long  to  be  operated 

alone  with  air  brakes. 


§  286.  Degree  of  diligence  to  make  repairs. — What  de- 
gree of  diligence  is  necessary  in  making  repairs  has  been 
variou.sly  decided.  Thus^  in  one  case  it  was  said:  "The 
utmo.st  diligence  does  not  seem  to  have  been  used  to  discover 
and  repair  the  defect  in  this  car."  ^  In  another  case  the  court 
said :  "If  diligence  is  to  be  recognized  as  a  defense,  certainly 
it  must  be  the  highest  form  of  diligence.  Without  regard  to 
what  the  rule  of  liability  may  be,  the  exercise  of  the  greatest 
care  in  the  matter  of  equipment  and  maintenance  will  keep 
coupling  appliances  in  such  condition  as  to  exclude,  except 
in  very  remote  instances,  the  necessity  of  prosecutions  for  the 
enforcement  of  the  act."  The  facts  in  this  case,  recited  in 
the  opinion,  show  why  the  court  did  not  think  a  proper  de- 


'  United     States     v. 
418 


Louisville,  etc.,  R.   Co.   15(i   Fed.  Rop.   193. 


REPAIRS.  419 

gree  of  diligence  had  been  observed  to  discover  the  defect  and 
repair  it.  The  defect  was  occasioned  by  the  loss  of  a  clevis 
pin.  "The  car  came  to  the  Indiana  Harbor  Road,"  said 
Judge  Landis,  "from  another  carrier  at  a  junction  point. 
Here  the  defendant  maintained  a  car  inspector,  who  testified 
that,  before  cars  were  moved  from  there  by  his  company,  he 
'customarily,'  or  'usually,'  or  'generally,'  made  an  examina- 
tion of  the  coupling  apparatus,  which  examination  consisted  of 
looking  at  the  coupler  and  lifting  the  lever.  If  such  inspec- 
tion disclosed  no  defect,  the  inspector  passed  the  car,  other- 
wise he  made  a  record  of  the  fact  in  a  book  kept  for  that 
purpose,  and  the  repairs  were  made  before  the  ear  was  moved. 
The  witness  did  not  recall  the  particular  car  in  question,  but 
his  book  contained  no  record  of  the  car,  which  indicated  that 
his  inspection  showed  the  appliances  to  be  in  good  condition. 
Even  assuming  the  government 's  view  of  the  law  ^  to  be 
wrong,  the  finding  in  this  case  must  be  against  the  railway 
company  on  the  questions  of  fact.  The  distance  traveled  by 
the  car  over  defendant's  track  was  but  a  few  miles.  If,  at 
the  initial  point,  the  pin  had  been  in  place  and  properly 
fastened,  it  is  not  probable  that  it  would  have  been  displaced 
by  the  ordinary  handling  of  the  car  to  destination.  The 
fact  that  the  pin  was  missing  at  the  end  of  the  journey  is 
strongly  indicative  that  the  defect  existed  at  the  point  of 
origin,  that  is  to  say,  that  the  pin  either  was  not  then  present, 
or  was  so  badly  worn  or  loosened,  that  proper  inspection  would 
have  disclosed  the  fact."  The  court,  therefore,  ordered  a  de- 
cree entered  against  the  railroad  defendant  thus  found  delin- 
quent.^ 

2  "That  it  is  no  defense  to  a  170  Fed.  542;  United  States  v.  Erie 
pi-osecution  of  this  character  that  R-  Co.  166  Fed.  352;  Chicago  &  N 
the   carrier   exercised    diligence  to      W.   Ry^  Co.   v.   Umted   States    168 

.,           J          .    ,    .      ..^       „.^  Fed.  236;  United  States  v.  innity  & 

provide    and    maintain    its    equip-  ^   ^       '    ^^    21 1  Fed.  448;  United 

ment    with    safety    appliances,    as  g^-^^^^  ^    Kansas  City  Southern  Ry. 

required  by  the  act."  q^   202  Fed.  828;  121  C.  C.  A.  136; 

3  United  States  v.  Indiana  Har-  Chicago,  B.  &  Q.  R.  Co.  v.  United 
bor  Co.  157  Fed.  Rep.  565;  see,  States,  195  Fed.  241;  115  C.  C.  A.  193; 
also,  United  .States  v.  Atlantic,  United  States  v.  Kansas  City  South- 
etc,   R.   Co.    (Appendix  G).  ern  Ry.  Co.  189  Fed  471. 

The  burden  is  upon  the  defend-  It  is  not  enough  for  a  defense  that 

nnt  to  show  an  excuse  for  not  the  railway  company  equipped  a  car 
ant    to    sho\\    an    excuse    lor    no.  ^      j      jf  ^^  becomes  out  of  repair, 

making  the  repairs  in  time.  United  ^^  ^^^^  ^^^.^-^  ^^^  ^^^^^^  United 
States    V.    Illinois    Central    R.    Co.      g^^^^^g  ^    ^.ne  R.  Co.  167  Fed.  352; 

United  States  v.  Great  Western  Ry. 

Co.  174  Fed.  399;  Chicago,  B.  &  Q. 

Rv.  Co.  V.  United  States,  170  Fed. 

556. 


420  FEDERAL  SAPETY  APPLIANCE  ACT, 

§  287.  Use  of  diligence  to  discover  defects— Want  of 
knowledge  of  defect. — If  a  railroad  company  has  properly 
equipped  its  cars,  still  it  will  be  liable  if  they  become  de- 
fective, thereby  causing  an  injury;  and  it  is  no  defense  that 
the  defendant  company  exercised  reasonable  care  and  dili- 
gence to  discover  and  repair  the  defect  before  placing  the 
car  in  service.  "The  statute  says,"  said  Justice  Humphrey, 
"that  common  carriers  shall  not  haul  or  use  cars  in  a  certain 
described  condition.  The  defendant  asks  the  court  to  hold, 
in  effect,  that  they  cannot  haul  the  ear  in  that  condition, 
provided,  that  they  have  failed  to  use  diligence  to  discover 
its  defective  condition,  but  that  if  they  have  used  due  dili- 
gence they  may  haul  the  car  in  its  defective  condition.  In 
all  such  cases  it  would  be  impossible  for  the  officers  of  the 
government  to  determine  in  advance  whether  a  statute  has 
been  violated  or  not ;  but  before  a  prosecution  could  be  prop- 
erly instituted  they  should  go  to  the  defendant  company, 
ascertain  what  care  it  had  used  in  regard  to  a  certain  car,  de- 
termine as  a  matter  of  fact  and  law  whether  the  acts  of  the 
defendant  constituted  due  diligence,  and  from  that  determine 
whether  a  prosecution  might  be  safely  instituted.  It  is  evi- 
dent that  such  a  defense  would  take  the  very  life  out  of  the 
act  in  question  and  render  its  enforcement  impossible,  except 
in  a  few  isolated  cases.  The  courts  cannot,  by  judicial  legis- 
lation, read  into  the  act  any  language  which  will  excuse  of- 
fenders any  more  than  they  can  read  into  it  language  which 
would  increase  their  liability.  Courts  must  enforce  law  as 
they  find  it.  *  *  *  I  have  been  unable  to  find  that  this 
character  of  defense  has  been  sustained  in  any  case  which 
reached  the  courts  of  last  resort.  Counsel  for  defendant  has 
not  cited  any  authority  in  support  of  this  doctrine  of  due 
diligence  as  a  defense  to  a  penal  action.  It  is  in  the  same 
category  with  the  question  of  intent  under  the  revenue  laws 
and  of  good  faith  under  statutes  against  handling  adulterated 
goods,  drugs,  etc.  It  is  certainly  well  established  that  the 
good  intentions,  or  the  lack  of  evil  intent,  on  the  part  of  a 


REPAIRS.  421 

liquor  dealer  is  no  defense  to  a  prosecution  for  the  statutory- 
penalty.  If  this  is  no  defense  in  a  quasi  criminal  action, 
it  certainly  would  be  none  in  a  civil  action  involving  the 
same  facts."  "The  propositions  of  law  submitted  by  the  de- 
fendant are,  therefore,  denied."  *  This  case  was  approved  in 
a  subsequent  case  in  which  it  was  said:  "The  railroad  com- 
panies are  charged,  as  I  have  shown,  with  the  duty  of  haul- 
ing only  such  cars  as  are  provided  with  automatic  couplers 
in  suitable  ^epair,  so  as  to  be  operative  without  the  necessity 
of  employees  going  between  the  cars ;  and  it  would  go  far 
to  subvert  the  law  and  the  purpose  thereof  if  they  were  per- 
mitted to  say  that  they  had  no  knowledge  of  the  defect,  and 
that,  therefore,  they  were  not  liable  under  the  act.  The  com- 
panies must  ascertain  for  themselves  and  at  their  peril 
whether  or  not  they  have  taken  up  or  are  hauling  cars  with 
defective  couplers.  Their  intention  to  do  right  does  not  re- 
lieve them.^  I  hold,  therefore,  that  want  of  knowledge  of  the 
defects  on  the  part  of  the  defendant  company  does  not  con- 
stitute a  defense."*'     Under  the  recent  decisions  knowledge 

«  United  States  v.  Southern  Ry.  Co.  Fed.  542  (Appendix  G);  Chicago    B 

135  Fed    Ren    122.  &  Q-  ^7-  Co.  v.  United  States,  220 

5  Citing    United    States    v.    Great  U.  S.  559;  31  Sup.  Ct.  619;  56  L.  Ed. 
Northern  Ry.  Co.  150  Fed.  229.  55;  Delk  v.  St.  Louis  &  S   F.  R   Co 

6  United  States  v.  Southern  Pac.  220  U.  S.  580;  31  Sup.  Ct.  61/;  57 
Co  15-4  Fed  Rep.  897;  United  States  L.  Ed.  590;  United  States  v.  Baltimore 
V.  Atlantic,  etc.,  R.  Co.  153  Fed.  Rep.  &  Ohio  Ry.  Co.  170  Fed.  456;  United 
918.  This  is  now  the  rule  of  the  States  v.  Southern  Pacific  Co.  169 
majority  of  the  cases,  especially  those  Fed.  407;  Chicago,  B.  &  Q.  Ry.  Co. 
of  a  recent  date.  United  States  v.  v.  United  States,  1/0  Fed.  556; 
Atchison  etc.,  R.  Co.  167  Fed.  636  United  States  v.  Southern  Ry.  Co. 
(Appendix  G);  United  States  v.  170  Fed.  1014;  Atchison,  T.  &  S  F. 
Wabash  R.  Co.  168  Fed.  1  (Appendix  Ry.  Co.  v.  United  States,  1/2  Fed. 
G)-  United  States  v.  Atchison,  etc.,  1021;  Norfolk  &  W.  Ry.  Co.  v.  United 
Ry  Co.  163  Fed.  Rep.  517;  United  States,  177  Fed.  623;  101  C.  C.  A. 
States  V.  Chicago,  etc.,  R.  Co.  163  249;  Johnson  v.  Great  Northern  Ry. 
Fed.  Rep.  775;  United  States  v.  Co.  178  Fed.  643;  Siegel  v.  New 
Baltimore,  etc.,  R.  Co.  (Appendix  G);  York  Central  &  H.  R.  R-  Co.  1/8 
United  States  v.  Erie  R.  Co.  166  Fed.  Fed.  873;  Galveston,  H.  &  S.  A.  Ry. 
Rep  352-  United  States  v.  Southern  Co.  v.  United  States,  183  Fed.  o/9; 
Ry  Co.  167  Fed.  699,  Appendix  G;  Norfolk  &  W.  Ry.  Co.  v.  United 
Atlantic  Coast  Line  R.  Co.  V.  United  States,  191  Fed.  302;  Nichols  v. 
States,  168  Fed.  Rep.  175;  United  Chesapeake  &  Ohio  Ry.  Co.  195  Fed. 
States  V.  Atlantic  Coast  Line  Co.  913;  Galveston,  H.  &  S  A.  Ry-  Co. 
(Appendix  G);  Chicago,  etc.,  R.  Co.  v.  United  States,  199  Fed.  891; 
V  United  States,  165  Fed.  Rep.  423;  United  States  v.  Pere  Marquette  R. 
Chicago,  etc.,  R.  Co.  v.  King,  169  Co.  211  Fed  220;  United  States  v. 
Fed.  Rep.  372.  But  see  United  Trinity  &  B.  \  .  Ry.  Co.  211  Fed.  448. 
States  v.   Illinois  Cent.  R.  Co.   170 


422 


FEDERAL   SAFETY   APPLIANCE   ACT. 


is  not  an  element  of  the  defense."^  It  therefore  follows  that 
the  use  of  diligence  to  discover  and  repair  a  defect  is  not 
a  defense.*'-  But  the  exercise  of  such  diligence  on  the  part 
of  the  carrier  will,  in  a  great  measure,  obviate  occasion  for 
prosecutions.''^  A  wilful  intention  on  the  part  of  carriers  to 
disregard  the  statutes  is  not  an  element  of  their  violation.^* 
Iiiconvenienee  for  the  carrier  to  observe  the  statutes  does 
not  excuse  their  violation.*'^  The  duty  to  equip  a  car  prop- 
erly and  repair  it  cannot  be  evaded  by  assignment  or  other- 
wise.''® But  there  is  no  violation  of  the  statutes  arising 
from  the  failure  of  an  employee  to  efficiently  operate  an 
equipment,  if  it  be  actually  operative."^ 

§  288.    Duty  to  maintain  car  in  repair  is  an  absolute 
one.* — Whether  or  not  the  duty  of  a  railroad  company  to 


^'  United  States  v.  Chicago,  etc., 
R.  Co.  156  Fed.  Rep.  180;  United 
States  V.  Philadelphia,  etc.,  R.  Co. 
160  Fed.  696  (Appendix  G);  United 
States  V.  Pennsylvania  R.  Co.  (Appen- 
dix G);  United  States  v.  Baltimore, 
etc.,  R.  Co.  (Appendix  G);  United 
States  V.  Lehigh  Valley  R.  Co.  160 
Fed.  696  (Appendix  G);  United  States 
V.  Chicago,  etc.,  R.  Co.  162  Fed.  Rep. 
775;  United  States  v.  Erie  R.  Co. 
166  Fed.  Rep.  352. 

The  inspectors  of  the  government 
are  not  required  to  notify  the  em- 
ployees of  the  railroad  company  of 
defects  on  cars.  United  States  v. 
Atchison,  etc.,  R.  Co.  167  Fed.  696 
Norfolk  &  W.  Ry.  Co.  v.  United 
States,  191  Fed.  302;  112  C.  C.  A.  46 
Chicago,  B.  &  Q.  R.  Co.  v.  United 
States,  211  Fed.  12;  127  C.  C.  A.  438 
United  States  v.  Chicago,  G.  W.  Ry 
Co.  162  Fed.  775;  United  States  v 
Baltimore  &  O.  R.  Co.  170  Fed.  456 
(Appendix  G);  United  States  v. 
Southern  Ry.  Co.  (Appendix  G). 

•  This  section  is  retained,  although 
it  is,  in  its  main  point,  in  direct 
conflict  with  the  rule  laid  down  in  the 
next  preceding  .section. 

»2  Wabash  R.  Co.  v.  United  States, 
172  Fed.  864;  United  States  v.  South- 


em  Pacific  Co.  169  Fed.  407;  United 
States  v.  Oregon  Short  Line  R.  Co. 
180  Fed.  483;  United  States  v.  South- 
ern Ry.  Co.  170  Fed.  1014;  Chicago, 
B.  &  Q.  Ry.  Co.  V.  United  States, 
170  Fed.  556;  United  States  v.  Balti- 
more &  Ohio  R.  Co.  170  Fed.  456. 

"^  United  States  v.  Indiana  Har- 
bor R.  Co.  157  Fed.  565. 

«*  Chicago,  B.  &  Q.  Ry.  Co.  v. 
United  States,  170  Fed.  556;  United 
States  v.  Southern  Pacific  Co.  154 
Fed.  897;  United  States  v.  Baltimore 
&  Ohio  R.  Co.  170  Fed.  456;  Luken 
v.  Lake  Shore  &  M.  S.  Ry.  Co.  248 
111.  377;  94  N.  E.  175. 

^^  Chicago  Junction  Ry.  Co.  v. 
King,  169  Fed.  372;  United  States 
v.  Southern  Pacific  Co.  169  Fed.  407; 
Siegel  V.  New  York  Central  &  H.  R. 
R.  Co.  178  Fed.  873;  United  States 
v.  Grand  Trunk  Ry.  Co.  203  Fed. 
775;  United  States  v.  Pere  Mar- 
quette R.  Co.  211  Fed.  220. 

««  Philadelphia  &  R.  Ry.  Co.  191 
Fed.  1;  Chicago  Junction  Ry.  Co.  v. 
King,  169  Fed.  372. 

"  United  States  v.  Illinois  Central 
R.  Co.  156  Fed.  182.  But  see  Gilbert 
V.  Burlington,  C.  R.  &  N.  Ry.  Co. 
128  Fed.  529. 


REPAIRS.  423 

equip  its  ears  with  automati'e  couplers  as  the  statute  requires, 
and  to  maintain  them  in  that  condition,  is  an  absolute  one 
or  one  merely  requiring  the  exercise  of  reasonable  diligence, 
has  recently  been  settled  by  the  Supreme  Court  of  the 
United  States.  Under  the  interpretation  of  this  court  given 
the  statute,  reasonable  diligence  to  equip  cars  with  auto- 
matic couplings  and  to  maintain  them  in  repair  is  not  a 
defense,  either  in  an  action  to  recover  the  penalty  pre- 
scribed by  the  statute  for  a  failure  in  this  respect  or  to 
recover  damages  sustained  by  an  employee  by  reason  of 
their  defective  condition.  The  court  discussed  at  great 
length  Taylor's  case.^^  In  that  case  the  court  used  this 
language:  "In  the  case  before  us  the  liability  of  the  de- 
fendant does  not  grow  out  of  the  common  law  duty  of 
master  to  servant.  The  Congress,  not  satisfied  with  the 
common  law  duty  and  its  resulting  liability,  has  prescribed 
and  defined  the  duty  by  statute.  We  have  nothing  to  do 
but  to  ascertain  and  declare  the  meaning  of  a  few  simple 
words  in  which  the  duty  is  described.  It  is  enacted  that  'no 
cars,  either  loaded  or  unloaded,  shall  be  used  in  interstate 
traffic  which  do  not  comply  with  the  standard.'  There  is 
no  escape  from  the  meaning  of  these  words.  Explanations 
cannot  clarify  them,  and  ought  not  to  be  employed  to  con- 
fuse them  or  lessen  their  significance.  The  obvious  pur- 
pose of  the  legislature  was  to  supplant  the  qualified  duty 

«8  St.  Louis,  I.  M.  &  S.  R.  Co.  v.  affirmed.  St.  Louis,  I.  M.  &  S.  R.  Co. 

Taylor,  210  U.  S.  281;  26  Sup.  Ct.  v.  Neal,  83  Ark.  591;  98  S.  W.  958. 

616;  52  L.  Ed.  1061.    This  case  first  And   it   was   then    appealed    to    the 

appeared   as   Neal   v.    St.    Louis,    I.  United   States   Supreme   Court,    but 

M.  &  S.  R.  Co.  71  Ark.  445;  78  S.  W.  reversed  210  U.  S.  281;  28  Sup.  Ct. 

220,  where  it  was  reversed.     It  was  616;  52  L.  Ed.  1061. 
again    appealed    and    the    judgment 


^24  FEDERAL,   SAFETY   APPLIANCE   ACT. 

of  the  common  law  with  an  absolute  duty  deemed  by  it 
more  just.  If  the  railroad  does,  in  point  of  fact,  use  cars 
which  do  not  comply  with  the  standard,  it  \dolates  the  plain 
prohibition  of  the  law,  and  there  arises  from  that  violation 
the  liability  to  make  compensation  to  one  who  is  injured  by 
it.  It  is  urged  that  this  is  a  harsh  construction.  To  this 
we  reply  that,  if  it  be  the  true  construction,  its  harshness  is 
no  concern  of  the  courts."  In  the  first  appeal,  the  Su- 
preme Court  of  Arkansas  had  said:  "The  statute  upon 
which  this  case  is  based  does  not  say  that  the  company  shall 
use  ordinary  care  to  provide  its  cars  with  drawbars  of  a 
certain  height,  but  it  imposes  as  a  positive  duty  upon  rail- 
way companies  that  they  shall  do  so.  *  *  *  The  act  of 
Congress  requiring  railroad  companies  to  equip  their  cars 
with  drawbars  of  standard  and  uniform  heights,  specifically 
provides  that  an  employee  injured  by  failure  of  a  com- 
pany to  comply  with  the  act  shall  not  be  deemed  to  have 
assumed  the  risk  by  reason  of  his  knowledge  that  the  com- 
pany had  not  complied  wdth  the  statute,  and  there  is  no 
question  of  assumed  risk  presented. ' '  '^^  The  Federal  Su- 
preme Court,  in  this  recent  case  regarded  the  Taylor  case 
as  having  settled  that  it  was  the  absolute  duty  of  an  inter- 
state railway  company  to  maintain  its  cars,  after  their 
equipment,  in  a  proper  condition,  and  that  it  was  no  defense 
that  it  had  used  reasonable  diligence  to  keep  them  in  re- 
pair.*'^ The  court  quoted  with  approval  the  following  lan- 
guage used  by  ]\rr.  Justice  Van  Devanter  (now  on  the 
Federal  Supreme  Court  Bench),  used  in  a  Circuit  Court  of 
Appeals :  "  It  is  now  authoritatively  settled  that  the  duty  of 
the  railway  company  in  situations  where  the  Congressional 
law  is  applicable  is  not  that  of  exercising  reasonable  care 
in  maintaining  safety  appliances  in  operative  condition,  but 
is  absolute.     In  that  case  the  common  law  rules  in  respect 

ebNeal  v.  St.  Louis,  I.  M.  &  S.  Sup.    Ct.    fil2;     55    L.    Ed.    521; 

R.  Co.  71  Ark.  445;  78  S.  W.  220.  Southern  Ry.  Co.  v.  United  iStates, 

ecChif-apo,   B.   &    Q.   Ry.   Co.   v.  222  U.  S.  20;»32  Sup.  Ct.  2;  54  L.  Ed. 

United  States,  220  U.  S.   559;   31  868. 


REPAIRS.  425 

of  the  exercise  of  reasonable  care  by  the  master,  and  of  the 
non-liability  by  the  master  for  the  negligence  of  a  fellow- 
servant,  were  involved  by  the  railway  company,  and  were 
held  by  the  court  to  be  superseded  by  the  statute.  *  *  * 
While  the  defective  appliance  in  that  case  ^^  was  a  draw- 
bar, and  not  a  coupler,  and  the  action  was  one  to  recover 
damages  for  the  death  of  an  employee,  and  not  a  penalty, 
we  perceive  nothing  in  these  differences  which  distinguish 
that  case  from  this.  As  respects  the  nature  of  the  duty 
placed  upon  the  railway  company,  section  five,  relating  to 
drawbars,  is  the  same  as  section  two,  relating  to  couplers ; 
and  section  six,  relating  to  the  penalty,  is  expressed  in 
terms  which  embrace  every  violation  of  any  provision  of 
the  preceding  sections.  Indeed,  a  survey  of  the  entire 
statute  leaves  no  room  to  doubt  that  all  violations  thereof 
are  put  in  the  same  category,  and  that  whatever  property 
would  be  deemed  a  violation  in  an  action  to  recover  for 
personal  injuries  is  to  be  deemed  equally  a  violation  in  an 
action  to  recover  a  penalty.'"^-  On  the  same  day  the  Su- 
preme Court  settled  the  question  holding  it  was  the  abso- 
lute duty  of  a  railway  company  to  equip  its  cars  as  the 
statute  required  and  to  so  maintain  them  without  regard  to 
reasonable  care  or  the  degree  of  diligence,  it  reaffirmed  the 
rule  it  had  approved.*^' 


61  The  Taylor  case  above  re-  403:  United  States  v.  Lehisrh 
ferred  to.  Valley  E.  Co.  162  Fed.  410;  United 

62  United  States  v.  Atchison,  T.  States  v.  Denver  &  R.  G.  R.  Co. 
&  S.  F.  R.  Co.  163  Fed.  517;  90  163  Fed.  .519;  90  C.  C.  A.  329; 
C.  C.  A.  327.  CliicajTO,   M.  &   St.   P.   R.   Co.    16.5 

63Delk  V.  St.  Louis  &  S.  F.  R.  Fed.    423;    91    C.    C.    A.    371.    20 

Co.    220   U.   S.    580;    31    Sup.   Ct.  L.   R.    A.    (N.    S.)    473:    Donegan 

617;   55  L.  Ed.  -590;  reversing  170  v.   Baltimore  &  N.  Y.  R.  Co.   165 

Fed.   556:    95   C.   C.   A.   642;    Vir-  Fed.  689;  01  C.  C.  A.  555;  United 

ginia  Rv.  Co.  v.  United  States,  223  States  v.  Erie  R.  Co.  166  Fed.  352; 

Fed.  748.  United  States  v.  Wheeling  &  L.  E. 

The    following    cases    in    lower  R.  Co.  167  Fed.  198,  201;  Atlantic 

courts  had  accepted  the  rule  laid  Coast  Line  R.  Co.  v.  United  States, 

down    in   the   Taylor    case   and    as  168  Fed.  175.  184:  94  C.  C.  A.  35: 

subsequentlv   affirmed    by   the    Su-  Chicago  Junction  R.  Co.  v.  King, 

preme    Court:      United  '  States    v.  169    Fed.    372,   377;    94   C.   C.    A. 

Pliiladelphia  &  R.  Ry.  Co.  162  Fed.  652;    United    States    v.    Southern 


426 


FEDERAL,   SAFETY  APPLIANCE  ACT. 


§  289.  Presumption — Diligence  to  discover  defects  and 
make  repairs  in  transit.* — Not  at  one  are  courts  with 
respect  to  the  degree  of  diligence  that  must  be  exercised  to 
discover  defects  in  cars  and  make  repairs.  In  some  of  the 
cases  little  or  no  excuse  is  accepted  as  a  defense,  even  in  a 
criminal  case;  while  in  others  more  leniency  is  shown,  at 
least  in  criminal  cases.  Such  a  case  is  one  that  arose  in  the 
United  States  Court  for  the  District  of  Nebraska.  In  that 
case  the  testimony  showed  that  the  defective  car  had  at  one 
time  been  equipped  in  the  manner  required  by  law,  and 
the  court  declared  that  it  could  not  presume  that  any  part 


Pac.  Co.  169  Fed.  407,  409;  94  C.  C. 
A.  629;  Watson  v.  St.  Louis,  I.  M. 
&  S.  R.  Co.  169  Fed.  942;  Wabash  R. 
Co.  V.  United  States,  172  Fed.  864; 
97  C.  C.  A.  284;  Atchison,  T.  &  S. 
F.  R.  Co.  V.  United  States,  172  Fed. 
1021;  96  C.  C.  A.  664;  United  States 
V.  Atchison,  T.  &  S.  F.  R.  Co.  163 
Fed.  517;  90  C.  C.  A.  327;  Norfolk 
&  W.  R.  Co.  V.  United  States,  177 
Fed.  623;  101  C.  C,  A.  249;  United 
States  V.  Illinois  C.  R.  Co.  177  Fed. 
801;  101  C.  C.  A.  15;  Johnson  v. 
Great  Northern  R.  Co.  178  Fed.  646; 
102  C.  C.  A.  89;  Siegel  v.  New  York, 
C.  &  H.  R.  R.  Co.  178  Fed.  873; 
Willett  V.  Illinois  Central  R.  Co. 
122  Minn.  513;  142  N.  W.  883; 
Nashville.  C.  &  St.  L.  R.  Co.  v. 
Henry,  158  Ky.  88;  164  S.  W.  310; 
St.  Louis  &  S.  F.  R.  Co.  v.  Conarty, 
106  Ark.  421;  155  S.  W.  93;  Devine  v. 
Chicago  &  C.  R.  Co.  168  111.  App.  450; 
United  States  v.  Pere  Marquette 
R.  Co.  211  Fed.  220;  Atlantic  Coast 
Line  R.  Co.  v.  Whitney,  62  Fla.  124; 
56  Atl.  9.37;  Chicago,  B.  &  Q.  Ry. 
Co.  V.  United  States,  220  U.  S.  559; 
31  Sup.  Ct.  612;  55  L.  Ed.  582. 

The  fact  that  it  may  be  incon- 
venient for  carrier  to  observe  the 
statutes  does  not  excuse  their  viola- 
tion. Chicago  Junction  Ry.  Co.  v. 
King,  109  Fed.  372;  94  C.  C.  A.  652; 
United  States  v.  Southern  Pacific 
Co.  169  Fed.  407;  94  C.  C.  A.  629; 
Siegel  V.  New  York  Central  &  II.  R. 
R.  Co.  178  Fed.  873;  United  States 
V.  Grand  Trunk  Ry.  Co.  203  Fed. 
775;  United  States  v.  Pere  Marquette 
R.  Co.  211  Fed.  220. 

In  the  following  cases  the  same  rule 
was  adopted:    Chicago,  B.  &  Q.  Ry. 


Co.  V.  United  States,  170  Fed.  556; 
United  States  v.  Illinois  Central  R. 
Co.  170  Fed.  542;  United  States  v. 
Philadelphia  &  R.  Ry.  Co.  160  Fed. 
696;  United  States  v.  Southern  Pacific 
Co.  167  Fed.  699;  United  States  v. 
Louisville  &  N.  R.  Co.  156  Fed.  193; 
Brinkmeir  v.  Missouri  Pacific  Ry. 
Co.  81  Kan.  101;  105  Pac.  221;  224 
U.  S.  269;  32  Sup.  Ct.  412;  56  L. 
Ed.  758,  overruling  first  paragraph 
of  syllabus  in  Missouri  Pacific  Ry. 
Co.  V.  Brinkmeir,  77  Kan.  14;  93 
Pac.  621. 

Reasonable  diligence  to  discover 
defect  is  all  that  is  necessary  to  be 
used  has  been  held  in  these  cases: 
Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg, 
170  Fed.  551;  United  States  v. 
Ilhnois  Central  R.  Co.  156  Fed.  182; 
United  States  v.  Illinois  Central  R. 
Co.  170  Fed.  542;  Carson  v.  Southern 
Ry.  Co.  68  S.  C.  55;  46  S.  E.  525; 
see  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v. 
York,  92  Ark.  554;  123  S.  W.  376. 

The  same  degree  of  diligence  i3 
required  under  the  Michigan  statute. 
Wight  V.  Michigan  Central  R.  Co. 
161  Mich.  216;  126  N.  W.  414;  17 
Det.  Leg.  N.  289,  and  under  the 
Ilhnois  statute,  Erlinger  v.  St.  Louis 
&  O.  Ry.  Co.  152  111.  App.  640;  245 
111.  304;  92  N.  E.  153. 

In  the  construction  of  a  state 
statute  regulating  intrastate  cars  in 
terms  identical  with  the  Federal 
statute  concerning  the  duty  to  equip 
and  keep  couplers  in  repair,  the  state 
court  will  follow  the  construction 
placed  upon  the  Federal  statute. 
Luken  v.  Lake  Shore  &  M.  S.  Ry.  Co. 
248  111.  377;  94  N.  E.  175. 


REPAIRS.  427 

of  the  required  equipment  was  imperfect  when  the  alleged 
defective  cars  had,  some  time  previously  to  the  discovery  of 
the  defects,  been  started  on  their  interstate  journeys,  for  there 
was  no  evidence  whatever  as  to  the  effect  that  the  safety  ap- 
Dliances  were  in  any  wise  defective  when  they  bearan  their 
journey.  "The  presumption  of  innocence,"  said  the  court, 
"will  leave  no  room  for  the  inference  that  the  cars  were  not 
properly  equipped  when  that  journey  was  beerun,  especially 
as  no  intelligent  person  can  shut  his  eyes  to  the  fact  that  the 
rapid  motion,  rough  jostling  and  jolting  of  the  trains,  and 
their  immense  weight  may  at  some  time  result  in  injury  to 
such  equipment.  There  cannot  be  much  nicety  in  the  move- 
ments of  freight  trains.  The  only  offenses,"  continued  the 
court,  "imputed  to  the  defendant  in  these  cases  is  the  use  of 
the  various  cars  at  the  times  specified  in  the  pleadings  and 
covered  by  the  evidence.  Except  these,  no  other  offenses  are 
charged  or  attempted  to  be  proved.  The  testimony  on  behalf 
of  the  government  shows  that  nearly  every  one  of  the  cars 
had  started  from  the  initial  point  of  their  respective  jour- 
neys at  least  one  day.  and  usually  longer,  before  the  inspectors 
of  the  United  States  discovered  the  defects  at  some  inter- 
mediate station.  The  testimony  was  very  brief,  and  was  di- 
rected altogether  to  what  the  inspectors  then  saw.  No 
information  was  given  which  might  enable  the  court  to  deter- 
mine how  long  the  defect  existed.  Obviously,  under  these 
circumstances,  we  could  not  conclude  that  any  defects  existed 
when  the  car  started  several  days  before.  We  must,  on  the 
contrary,  presume  that  the  defects  were  in  some  way  caused 
during  the  long  previous  journey  from  the  initial  point  to 
the  point  of  discovery,  and  therefore,  presuming  that  no  vio- 
lation of  the  act  occurred  until  after  the  cars  had  left  the 
original  starting  points,  and  having  ascertained  from  the  clear 
and  explicit  evidence  offered  by  the  United  States  that  de- 
fects were  found  during  the  subsequent  journey,  we  come  to 
the  point  where  our  greatest  difficulty  begins.  We  should 
not  lightly  suppose  that  Congress  intended,  in  case  a  prop- 
erly equipped  car  started  on  its  interstate  journey  with  all 


428  FEDERAL  SAFETY  APPLIANCE  ACT. 

the  required  safety  appliances  in  perfect  condition,  but  some 
part  of  which  afterwards,  in  its  rough  and  rapid  journey,  in 
some  unknown  way  and  at  some  time  when  the  fact  was  prac- 
tically, if  not  actually,  undiscoverable,  was  broken  or  other- 
wise made  defective,  that  the  running  of  that  car  for  the 
least  distance  under  those  circumstances  should  be  held  to  be 
a  criminal  offense.  Yet  such  is  the  contention  for  the  United 
States,  and  it  is  true  that  the  act,  literally  construed,  would 
lead  to  that  result  and  would  embrace  just  such  a  case.  To 
make  crimes  out  of  such  inevitable,  unavoidable,  and  unin- 
tentional acts,  of  the  happening  of  which  the  carrier  would 
usually  be  unconscious,  would  obviously  be  unjust  and  op- 
pressive, and  in  a  certain  sense  absurd  for  that  reason.  It 
would  be  shocking  to  any  well-regulated  moral  sense  to  up- 
hold the  contention  if  only  an  individual  citizen  were  in- 
volved, and  as  we  know  of  no  rule  that  differentiates  one  sort 
of  person  from  another  in  the  application  of  the  rules  of 
criminal  law,  we  cannot  willingly  hold  that  such  was  the  in- 
tention of  Congress,  even  though  the  language  used  might 
literally  indicate  it.  We  are  not,  however,  permitted  to  de- 
part from  the  words  of  the  act  of  Congress,  or  to  read 
exceptions  into  it,  unless  upon  established  principles  of 
interpretation  which  would  authorize  it.  Some  departure 
from  a  literal  construction  may  be  admissible  in  this  instance ; 
but,  if  so,  we  must  not  only  find  the  principles  upon  which 
that  course  may  be  justified,  but  also  the  points  where  we 
may  begin  and  where  we  must  end;  and  this,  we  think,  has 
boon  done  in  the  authorities  we  have  cited.  It  was  insisted 
on  behalf  of  the  government  that  the  statute  should  be  con- 
strued with  the  utmost  strictness,  and  so  literally  as  to  make 
it  a  criminal  offense  under  the  statute  if  the  car  was  used  or 
operated  for  one  moment,  even  at  night,  after  the  breakage 
<jf  any  part  of  the  required  equipment,  even  though  such 
breakage  occurred  Avhile  the  train  was  in  rapid  motion 
between  stations,  when  it  was  impossible  for  anybody 
conneeted  with  i1s  opcrjitioii  lo  ascertain  the  facts.  In 
siiort      the      contentiuii      was      that      the      act     should      be 


REPAIRS. 


429 


construed  in  the  strictest  and  most  literal  manner, 
without  regard  to  any  other  consideration  whatever. 
If  this  contention  be  sound,  nothing  could  be  sim- 
pler, and  the  government  was  accordingly  content  to  prove, 
as  it  did  by  two  of  its  inspectors,  that  thej^  passed  alongside 
of  the  defendant's  trains  while  at  intermediate  stations  upon 
the  several  occasions  involved  and  discovered  the  defects 
alleged  in  the  respective  paragraphs  of  the  petition,  and  saw 
the  cars  proceed  on  their  journey  in  that  condition.  It  was 
also  shown  that  this  was  done  without  in  any  wise  informing 
any  of  the  employes  of  the  defendant  of  the  defects.  This 
was  the  course  pursued  in  one  instance  at  Fulton,  Kentucky, 
where  at  least  seven  separate  couplings  had  been  ascertained 
to  be  out  of  repair  in  one  train,  although  the  defects  may 
have  endangered  the  lives  of  the  crew  in  charge  'of  that  train 
during  the  trip  to  its  destination,  and  although  several  of 
these  defects  could  have  been  very  easily  repaired  at  that 
point  if  their  existence  had  been  disclosed.  If  the  inspectors 
had  pointed  out  the  defects,  and  if  those  defects  had  not  been 
repaired  before  the  cars  were  moved  (if  under  the  circum- 
stances  that  were  reasonably  possible),  the  offense  would  cer- 
tainly have  been  complete.  And  if  the  repairs  had  then  been 
made  the  object  of  the  law  would  have  been  accomplished,  and 
the  protection  of  the  train  hands  would  have  been  cared  for 
so  far  as  the  safety  appliances  were  concerned.  The  inspec- 
tors, however,  seem  to  have  thought  it  to  be  their  duty  to 
permit  defectively  equipped  cars  to  move  without  giving  any 
information  that  would  have  enabled  the  defendant  to  remove 
the  dangers  to  the  crew  by  supplying  or  repairing  the  defects. 
On  the  other  hand,  it  was  insisted  that  the  statute  should  be 
so  construed  as  not  to  visit  criminal  consequences  upon  a 
defendant  in  cases  where  it  had  started  its  cars  with  the 
proper  equipment,  but  which,  during  the  journey,  had  become 
deficient  from  unavoidable  occurrences  and  under  circum- 
stances, where  the  discovery  of  needed  repairs  was  in  most 
instances  impossible.  It  was  urged  that  the  construction  con- 
tended for  by  the  government  would  lead  to  gross  injustice 


430  FEDERAL   SAFETY  APPLIANCE  ACT. 

and  oppression  and  to  the  absurd  consequences  of  punishing 
one  for  a  wholly  involuntary  act,  the  doing  of  which  could 
not  be  discovered  until  a  greater  or  less  time  had  elapsed 
after  the  offense  had  been  completed.  The  defendant  ac- 
cordingly, while  complaining  of  the  impossibility  of  being 
able  to  show  the  exact  facts  at  all  times  in  reference  to  the 
innumerable  couplings  and  handholds  on  the  vast  number  of 
cars  hauled,  offered  evidence  tending  to  show  that  it  had  in- 
spected all  its  cars;  that  it  had  not  discovered  the  defects 
alleged,  unless  in  one  or  two  instances,  in  which  the  cars  had 
to  be  moved  short  distances  in  order  to  reach  a  point  where 
repairing  was  possible.  And  thus  we  are  brought  to  the  ques- 
tion whether,  if  safety  appliances,  which  are  in  good  condi- 
tion when  the  journey  of  a  car  on  which  interstate  traffic  is 
being  carried  begins,  afterwards,  without  the  knowledge  of 
the  carrier,  get  broken  or  otherwise  out  of  repair,  it  is  suffi- 
cient proof  of  the  violation  of  the  law  to  show  that  fact  sim- 
ply, without  showing  also  that  the  defendant  had  learned  of 
the  defect  or  had  had  reasonable  opportunity  to  do  so. 
Manifestly  the  act  does  not  contain  any  words  implying  that 
the  use  of  the  car  without  the  required  safety  appliance  equip- 
ment shall  be  with  intent  to  violate  the  statute,  or  be 
knowingly  and  willfully  done;  nor,  indeed,  does  the  language 
make  any  exceptions  where  an  vinavoidable  accident  impairs 
or  destroys  the  operative  powers  of  any  of  these  appliances 
while  the  train  in  which  the  car  is  placed  is  moving  on  its 
journey.  Speaking  generally,  the  rule  is  that  in  such  cases 
we  cannot  by  construction  take  from  nor  add  to  the  language 
used  by  Congress,  but  what  we  are  to  ascertain  in  these  cases 
is,  not  what  general  rules  require,  but  whether  there  are  any 
exceptions  to  those  rules,  and,  if  any,  what  they  are.  The 
authorities  we  have  cited  seem  clearly  to  show  that,  if  a  strict 
■and  literal  construction  would  lead  to  manifest  injustice  and 
oppression  then  the  language  used  should  be  so  construed  as 
to  avoid  those  results.  The  defendant  is  a  common  carrier, 
engatred  in  the  performance  of  important  duties  to  the  public, 
involving  great  and  various  oblifrntions.  to  which  it  is  strictly 


REPAIRS.  43]^ 

held.  For  the  most  part  the  several  thingjs  alle{?ed  against  it 
in  these  cases,  were  the  result  of  what  had  occurred  while  its 
trains  were  in  motion  between  stations  on  its  railroad.  Those 
occurrences  were  practically  inevitable  in  the  ordinary  opera- 
tion of  its  trains.  It  was  impossible  to  avoid  them,  or  to 
know  of  them  until  long  afterwards;  and,  however  it  may 
strike  others,  in  the  opinion  of  this  court  it  would  obviously 
be  unjust  and  oppressive  to  so  construe  the  Safety  Appliance 
Act  or  to  make  such  occurrences  criminal  offenses  under  its 
provisions,  unless  the  defendant  had  reasonable  opportunity 
to  learn  of  them  before  it  afterwards  used  the  car  in  hauling 
interstate  traffic.  For  this  reason  the  court  readily  yields  to 
those  rules  of  construction  fixed  by  the  Supreme  Court  in  the 
cases  cited,''  and  by  which  it  can  properly  construe  the  acts 
upon  canons  of  interpretation  which  justify  and  demand 
the  limitation  of  its  general  language  within  the  bounds  we 
shall  indicate.  In  support  of  these  respective  contentions 
several  opinions  were  cited  upon  the  one  side  or  the  other.* 
*  *  *  While  we  have  been  instructed  by  those  cases,  we 
have  preferred  to  look  at  the  question  now  in  litigation  from 

^Huntington   v.   Attrill,    146   U.  690;    ChtiflFee  v.  United  States,  18 

S.    657;     13    Sup.    Ct.    Eep.    224;  Wall.  545;  21  L.  Ed.  908;   revers- 

36     L.     Ed.     1123;     reversing    70  ing   Fed.   Cas.  No.   14,774;    Clyatt 

Md.    191;     2    L.    R.    A.    779;     14  v.   United  States,   197   U.   S.   207; 

Am.    St.   Rep.   344;    16   Atl.    Rep.  25   Sup.   Ct.  Rep.  429;    49  L.  Ed. 

651;  Johnson  v.  Southern  Pac.  Co.  726;    Kirby  v.  United  States,   174 

196    U.    S.    1;    25    Sup.    Ct.    Rep.  U.   S.   55;    19    Sup.   Ct.    Rep.   574; 

162;   49  L.  Ed.  363;   reversing  54  43   L.   Ed.   809;    Agnew  v.  United 

C.  C.  A.  508:   117  Fed.  Rep.  462;  States,   165  U.  S.  .50;    17  Sup.  Ct. 

United    States   V-    Lacher    134    U.  Rep.  235;  41  L.  Ed.  624. 
S.    629;    10    Sup.    Ct.    Rep.    625;  'These    were    United    States    v. 

33  L.  Ed.  1080;  Carlisle  v.  United  Southern    Ry.    Co.    135    Fed.   Rep. 

States,    16   Wall.    153;    21    L.   Ed.  122;    United   States   v.    Pittsburg, 

426;     reversing    6     Ct.     CI.     398;  etc.,  Ry.   Co.   143   Fed.   Rep.  360; 

United    States    v.    Bell    Telephone  United    States    v.    Northern,    etc., 

Co.    159   U.    S.   548;    16    Sup.   Ct.  Co.    144    Fed.    Rep.    861;    United 

Rep.  69 ;  40  L.  Ed.  225 ;  Mottley  v.  States    v.    Indiana,    etc.,    R.    Co. 

Louisville,   etc.,    R.    Co.    150    Fed.  156  Fed.  Rep.  565;   United  States 

Rep.    406;     The    Burdett,    9    Pet.  v.   Chicago,  etc.,   R.   Co.   156   Fed. 


432 


FEDERAL   SAFETY   APPLIANCE  ACT. 


a  point  of  view  somewhat  different,  and,  without  going  into 
much  elaboration,  will  state  the  conclusions  reached.  It  prob- 
ably in  this  connection  should  not  be  forgotten  that  the 
Safety  Appliance  Act  was  intended  to  promote  the  safety  of 
the  very  men  who  are  in  charge  of  the  trains — men  whose 
duty  and  interest  require  them  to  discover  any  breakage  or 
defect  that  might  occur ;  and,  if  they  could  not  do  so,  it  seems 
to  the  court  that  the  literal  construction  contended  for  upon 
the  part  of  the  United  States  would  not  be  a  sensible  con- 
struction, but  would  work  out,  probably  in  most  instances, 
the  palpably  unjust  and  oppressive  result  of  inflicting  a  pun- 
ishment for  an  unavoidable  act  of  which  the  offender  was  at 
the  time  of  its  commission  necessarily  unconscious  and  with- 
out any  sort  of  intention  of  doing  a  wrong.  As  Congress 
must  be  presumed  not  to  have  intended  such  a  result,  we 
should  hold  that  it  did  not  intend  to  punish  the  unavoidable 
and  unconscious  doing  even  of  an  otherwise  unlawful  act. 
This  view  is  emphasized  by  the  obvious  facts  that  trains,  es- 
pecially on  single-track  railroads,  could  not,  without  great 
danger  to  the  traveling  public,  stop  between  stations  to  re- 
adjust or  put  on,  for  example,  a  new  handhold,  or  a  new  pin 
or  clevis,  on  some  car  in  a  freight  train,  even  if  the  defect 
were  discovered ;  that  in  respect  to  automatic  couplers  no  very 
great  danger  to  train  hands  could  arise  until  a  point  is 
reached  where  coupling  or  uncoupling  would  be  necessary; 
and  that  the  carrier's  duty  to  the  general  public  should  not 
altogether  be  forgotten.  We  cannot  resist  the  conviction  that 
the  most  urgent  insistence  upon  a  literal  construction  of  the 
statute  would  balk  in  a  case  where  a  train  running  at  speed 
between  stations  in  some  Avay  broke  some  part  of  the  safety 

180;   United  States  v.  Great,  etc.,  etc.,   Ry.    Co.    116    Fed.   Rep.    867. 

Ry.     Co.      150     Fed.     Rep.     229;  "And  the  same  case  in  the  Circuit 

United    States    v.    Southern    Pac.  Court   of   Appeals.      One   of   these 

Co.     154    Fed.    Rep.    807;    United  cases,  it  will  be  noted    was  an  ac- 

States    V.    Atchison,   etc.,    Ry.    Co.  lion  for  damages  by  an  individual, 

150   Fed.  Rep.  442;    United   States  and  the  other  was  for  the  enforce- 

V.  St.  Louis,  etc.,  R.  Co.  154  Fed.  ment  of  the  criminal  provisions  of 

Rep.    516;     Voelker    v.     Chicago,  the   statute." 


REPAIRS.  433 

appliance  equipment.  The  literal  interpretation  contended 
for  by  the  counsel  for  the  United  States  demands,  and  coun- 
sel insists  upon,  the  conclusion  that,  if  the  train  proceeds  at 
all  for  any  distance  (even  the  shortest)  after  the  break  occurs, 
the  offense  is  complete,  and  that  it  is  not  for  the  courts  to 
say  that  an  oifense  has  not  been  committed,  but  that  it  is  for 
the  executive  officers  to  decide  whether  the  government  will 
overlook  the  offense  or  prosecute  it.  The  courts,  however,  if 
appealed  to,  could  hardly  yield  to  a  view  which  would  exclude 
them  from  the  function  and  the  duty  of  passing  upon  the 
proper  meaning  of  the  act,  and  determining  for  themselves 
whether  a  person  accused  was  guilty  of  a  public  offense ;  and 
in  the  exercise  of  that  duty  they  can  scarcely  fail  to  say  that 
common  sense  demands  some  relaxation  from  a  literal  con- 
struction in  the  case  supposed.  If  we  relax  from  it  at  all, 
we  logically  surrender  it  altogether,  and  thenceforward  our 
labors  must  be  directed  to  finding  the  exact  point  where  we 
may  begin  and  where  we  may  end  in  order  to  reach  a  sen- 
sible and  just  conclusion  as  to  what  should  be  done  in  such 
cases.  That  some  relaxation  from  the  literal  construction 
contended  for  is  unavoidable,  is  clear,  and  w^e  think  we  may 
best  interpret  the  intention  of  Congress  by  holding  that  the 
carrier  should  be  made  liable  when  it  is  shown  that  a  safety 
appliance  equipment  has  become  deficient  and  inoperative 
after  the  interstate  journey  of  the  car  had  begun,  if  it  does 
not  supply  the  deficiency  at  the  first  opportunity  after  it  is 
actually  discovered,  or  after  its  discovery  could  have  been 
made  by  the  use  of  the  utmost  care  that  a  highly  prudent 
man  would  use  under  the  circumstances  of  the  case.  The  de- 
termination of  the  question  of  that  degree  of  care  would,  of 
course,  in  some  instances,  depend  upon  complex  conditions; 
but  the  necessity  for  its  determination  would  seem  to  be 
unavoidable,  unless  we  are  to  have  a  too  literal  or  a  too  loose 
construction  of  the  act  in  applying  it  to  practical  affairs 
in  which  the  great  questions  of  human  safety  and  necessary 
business  are  alike  involved.     This  view  seems  to  the  court 


434  FEDERAL   SAFETY   APPLIANCE   ACT. 

to  approximate  as  nearly  as  possible  the  presumed  purpose 
of  Congress  to  punish  intentional  or  avoidable  acts,  and  not 
those  which  were  unknown  and  absolutely  unavoidable  when 
they  occurred.  To  impute  to  Congress  an  intent  to  do  the 
latter,  would  seem  to  be  inadmissible,  though  we  should  prob- 
ably punish  in  every  instance  where  any  deficiency  in  safety 
appliances  existed  when  the  car  was  started  on  the  interstate 
journey.  At  that  point,  knowledge  of  the  defect  could  in 
most,  if  not  in  all,  cases  be  discovered.  But,  if  the  operative 
functions  of  such  appliances  become  defective  during  that 
journey,  then  punishment  as  for  a  criminal  offense  should 
only  be  visited  upon  the  carrier  in  cases  where  he,  by  the 
use  of  the  utmost  degree  of  diligence  which  would  be  used 
by  a  highly  prudent  person  under  the  circumstances,  could 
have  discovered  and  repaired  the  defect.  A  less  stringent 
rule  should  not,  we  think,  be  tolerated.  Assuming,  as  we 
must  from  the  evidence  and  legal  presumptions,  that  each 
of  the  offenses  alleged  in  these  cases  was  committed,  if  at 
all,  while  the  car  was  upon  an  interstate  journey,  and  not 
before  such  journey  began,  we  think  the  government,  in 
order  to  be  entitled  to  recover  the  prescribed  penalty  for 
the  offense,  must  by  the  evidence  show  to  the  exclusion  of 
reasonable  doubt  the  following  facts:  First,  that  the  car 
was  used  in  hauling  interstate  traffic;  second,  that  when  so 
used  the  car  was  either  not  equipped  or  provided  with  the 
required  safety  appliances  at  all,  or  else  that  some  part 
of  those  appliances  had  become  inoperative;  and,  third,  if, 
as  must  be  presumed  was  the  case  with  most  of  the  cars  now 
involved,  those  appliances  were  all  in  good  order  and  condi- 
tion when  the  car  was  originally  started  on  its  interstate 
journey,  and  afterwards  became  defective  during  the  transit, 
then,  in  order  to  convict,  the  evidence  must  show  to  the  ex- 
clusion of  reasonable  doubt  that  the  alleged  defects  had 
respectively  been  either  in  fact  discovered  by  the  carrier  or 
else  that  they  could  have  been  discovered  and  corrected  by  it 
by  the  exercise  of  the  utmost  degree  of  care  and  diligence 


HE.PAIRS.  435 

which  could  be  expected  at  the  hands  of  a  highly  prudent 
man  under  similar  circumstances.'"'^ 

§  290.  Distinction  between  an  action  to  recover  a  penalty 
and  to  recover  damages. — In  a  recent  case  in  the  Circuit 
Court  of  Appeals  for  the  Sixth  Circuit  a  distinction  has 
been  drawn  between  an  action  to  recover  damages  for  an 
injured  employee  occasioned  by  lack  of  proper  equipment 
and  one  to  recover  a  penalty  for  the  government,  with  re- 
spect to  a  car  becoming  defective  during  its  transit.  In  a 
case  of  a  prosecution  to  recover  a  penalty  the  rule  is  laid 
down  that  if  the  railroad  company  has  used  the  utmost 
diligence  in  having  a  defect  corrected  it  is  excused  and  not 
liable  to  the  penalty.*'*  But  it  cannot  be  serious  contended 
that  there  is  one  rule  in  an  action  by  the  government  to 
recover  a  penalty  and  another  to  recover  damages  to  the 
person.''^ 

§  291.  Cars  in  transit — Construction  of  statute. — A  simi- 
lar view  was  taken  in  another  case  to  that  taken  in  sec- 
tion 203.  Said  the  court:  "The  first  rule  of  construc- 
tion which  occurs  to  us  is  that  we  are  to  have  regard 
to  the  scope  and  purpose  of  the  statute,  not  so  much 
the  general  purpose,  as  the  immediate  purpose  of  this 
particular  enactment.  For,  if  we  look  too  intently  upon 
some  ultimate  good  we  would  wish  to  accomplish,  we  are 
very  liable  to  distort  the  law  or  make  out  of  it  some  other 
enactment  than  that  which  the  legislature  has  in  fact  passed. 
"We  think  the  immediate  purpose  of  Congress  in  this  enact- 
ment, in  the  respect  we  are  now  considering  it,  is  that  dis- 

9  United   States   v.    Chicago,    etc.,  Just  how  far  it  is  not  the  law  in  view 

R.  Co.  156  Fed.  Rep.  182,  affirmed  170  of  the  recent  decisions  of  the  United 

Fed.  556;  95  C.  C.  A.  642.  States  Supreme  Court,   section  288, 

This    court    proceeded    upon    an  it  is  quite  difficult  to  determine, 

entirely  erroneous  construction  of  the  ^*  United  States  v.  Illinois  Central 

statute.    It  is  held  that  the  case  was  R.  Co.  170  Fed.  542;  95  C.  C.  A.  628, 

a  criminal  one,  when  it  was  a  civil  reversing   156   Fed.    182.     Certiorari 

one.     It  held  that  the  case  must  be  denied,  214  U.  S.  520  (Appendix  G). 

proven  bj--  the  prosecution  beyond  a  ^t  Chicago,  B.  &  Q.  Ry.  Co.  220 

reasonable  doubt,  when  a  mere  pre-  U.   S.  559;  31   Sup.  Ct.  612;  55  L. 

ponderance,  but  clearly  showing  the  Ed.  582. 
violation  of  the  statute,  was  sufficient. 


436  FEDERAL.   SAFETY   APPLIANCE  ACT. 

closed  by  its  title,  wherein  it  is  declared  to  be  'An  act  to 
promote  the  safety  of  employes  and  travelers  upon  railroads, 
by  compelling  common  carriers  engaged  in  interstate  com- 
merce to  equip  their  cars  with  automatic  couplers,  etc.  The 
general  purpose  is  to  promote  the  safety  of  employes  and 
travelers;  but  the  immediate  purpose  of  the  act  is  to  pre- 
scribe a  way  of  doing  this,  namely,  by  compelling  common 
carriers  to  equip  ,  their  cars  with  automatic  couplers.  The 
method  or  means  by  which  the  ultimate  good  is  expected  to 
be  accomplished  is  the  subject  of  the  enactment.  The  safety 
of  the  employes,  etc.,  is  a  thing  beyond  an  expected  result 
of  the  enactment,  which  latter  is  the  substantive  thing  be- 
fore us  for  interpretation.  True,  we  should  have  regard  to 
the  result  intended  for  it,  but  we  cannot  carry  into  it  words 
foreign  to  its  meaning,  or  strain  those  used  beyond  their  fair 
import."  "When  we  come  to  the  enactment  itself  we  find 
that  in  the  second  section  it  corresponds  with  what  the  title 
has  heralded.  It  forbids  the  use  of  cars  which  have  not  been 
equipped  with  automatic  couplers,  which  are  a  little  more 
fully  defined  by  adding  that  they  are  to  be  such  as  will  ob- 
viate the  necessity  of  going  between  the  cars  to  uncouple 
them,  or,  as  we  are  disposed  to  think,  couple  them.  And  this 
is  all  there  is  of  the  statute  which  by  direct  language  im- 
poses the  duty  upon  the  carrier  in  respect  to  the  use  of 
automatic  coupling.  But  it  is  necessarily  implied  that  the 
railroad  company  shall  keep  up  the  equipment,  for  it  forbids 
the  use  of  the  cars  without  it.  In  this  connection  it  seems 
proper  to  refer  to  the  last  clause  in  section  2  which  is: 
'And  which  can  be  uncoupled  without  the  necessity  of  men 
going  between  the  ends  of  the  cars.'  We  understand  this  to 
be  a  part  of  the  description  of  the  type  of  the  automatic 
couplings  with  which  the  cars  must  be  equipped.  And 
further,  we  may  here  remark  that  the  coupling  with  which 
this  car  was  equipped  was  of  the  kind  required  by  the  act. 
Section  6  declares  that  the  use  of  any  car  in  violation  of  this 
provision  of  the  act  shall  constitute  an  offense  punishable 
by  a  fine  of  $100.     And  Section  8  declares  that  the  employe 


REPAIRS.  437 

sliajl  not  be  deemed  to  have  assumed  the  risk  occasioned  by 
the  failure  of  the  railroad  company  to  equip  its  cars  as  re- 
quired by  the  second  section.  Now,  the  statute  clearly  and 
positively  devolves  upon  the  railroad  company  the  duty  of 
equipping  its  cars  with  those  couplers,  and  makes  it  a  penal 
offense  to  use  its  cars  without  them.  All  this  is  simple 
enough.  The  company  could  make  no  mistake  about  it.  But 
we  can  find  no  warrant  for  imposing  such  drastic  conse- 
quences upon  the  failure  of  the  railroad  company  to  at  all 
times  and  under  all  circumstances  have  the  couplings  in  re- 
pair. One  of  the  recognized  rules  of  construction  of  statutes 
is  that  we  are  to  look  to  the  state  of  the  law  when  the  statute 
was  enacted  in  order  to  see  for  what  it  was  intended  as  a 
substitute,  and  another  is  that  it  is  not  to  be  presumed  that 
the  statute  was  intended  to  displace  the  former  law,  whether 
it  be  statute  or  common  law,  further  than  was  fairly  neces- 
sary to  give  it  place  and  operation.  Now,  prior  to  this  enact- 
ment, other  methods  were  employed  by  railroad  companies 
for  coupling  their  cars — generally,  if  not  universally,  by  a 
link  and  pins.  And  the  law  was  that  in  respect  of  this 
coupling  the  company  was  bound  to  exercise  that  reasonable 
degree  of  diligence  in  keeping  them  in  repair  which  was 
proportionate  to  the  danger  of  their  use.  The  rule  was  ex- 
pressed in  various  forms,  but  that  was  the  substance.  Con- 
ceiving that  the  new  form  or  method  of  automatic  coupling 
by  impact  would  mitigate  the  danger  to  employes.  Congress 
enacted  this  statute  to  compel  the  carrier  to  substitute  the 
new  form  for  the  old  in  operating  its  cars;  and,  of  course, 
it  is  necessarily  implied  that  it  shall  be  done  in  good  faith 
as  is  always  implied  in  the  enactment  of  laws.  If  the  carrier 
does  this,  it  has  complied  with  the  requirement  of  the  stat- 
ute, and  the  old  method  is  displaced  by  the  new.  But  it  is 
now  proposed  to  add  to  the  obligation  of  the  carrier  by 
requiring  that  he  shall  be  bound  to  see  that  the  substituted 
coupling  shall  at  all  times  and  places  be  in  good  order,  a 
burden  well  nigh  to  impossible.  The  coupling  apparatus  on 
railroad  cars  is  subject  at  all  times  while  they  are  being  oper- 


438  FEDERAL   SAFETY   APPLIANCE  ACT. 

ated.  to  almost  constant  wrench  and  strain  and  liability  to 
breakage.     ]\Iuch  of  the  time  the  cars  are  connected  up  in 
trains  running  on  the  time  schedules,  and  under  orders  of 
train  dispatchers  which  must  be  observed,  or  fatal  and  disas- 
trous consequences  ensue.     Moreover,  accidents  to  the  coup- 
lings  or   unknown    defects    appear    at   places   more    or   less 
remote  from  repair  shops.     It  is  reasonable  and  just  to  re- 
quire that  the  carrier  should  exercise  a  high  degree  of  care 
to   keep    the   couplings   in   proper   condition.      But   it   seems 
unjust   and    unreasonable   to   say   that   having    fulfilled    its 
utmost  duty  in  this  regard,  it  should  be  held  responsible  for 
conditions  which  may  occur  without  its  fault.     We  do  not 
say  that  Congress  has  not  the  power  to  impose  such  an  obli- 
gation as  it    is  contended    this    statute    imposes    but    what 
we    mean    to    say    is    that    if    a    statute  seems  to   impose 
obligations   so   extraordinary   and    difficult   to    perform    the 
courts     would     be     bound     to     see    whether    the    language 
employed      is     not     susceptible      of     a      more      reasonable 
eonstructfon.       Undoubtedly     there     are       many    cases    in 
the     multitude     of     statutes     where     the     command     is    so 
imperative  and  unconditional  that  there  is  no  escape  from 
an   exact   and   literal   observance.      The   industry   of   counsel 
has  accumulated  a  considerable  number  of  them  in  his  brief. 
In  such  cases  if  the  statute  is  within  the  power  of  the  legis- 
lature, there  is.  as  the  phrase  goes,  'no  room  for  construc- 
tion,' and  the  business  of  the  court  is  simply  to  administer 
the  law  as  it  is  written.     But  this  in  no  wise  relieves  the 
court  from  the  duty  of  construing  statutes  which  are  not  of 
that  character,  but  are  subject  to  the  amelioration  which  the 
common  law  affords  by  its  rules  of  construction.     But  with 
regard  to  this  statute,  on  turning  back  from  the  considera- 
tion of  the  consequences  to  the  language  employed,  we  find 
nothing   which   in   terms   imposes  such   an   obligation.     It   is 
Kaid  to  be  implied;  and  the  singular  result  is  that  instead  of 
shading  down  the  express  language  of  an  act  so  that  it  shall 
not  have  an  effect  which  we  canTiot  suppose  to  have  been  in- 
tended l)y  tlie  legislature,  we  should  by  implication  infer  an 


REPAIRS. 


439 


intent  which,  if  seemingly  expressed,  we  should  be  bound,  if 
fairly  possible,  to  suppose  did  not  exist.  Then,  again,  the 
statute  is  penal.  The  facts  which  would  be  necessary  to 
maintain  a  criminal  prosecution  are  the  same  as  those  which 
would  support  a  private  action.  The  only  difference  would 
be  in  the  greater  certainty  with  which  the  facts  should  be 
proven.  And  in  the  construction  of  such  statutes  the  court 
is  not  justified  in  extending  their  operation  beyond  the  plain 
meaning  of  the  language  used  into  regions  of  doubt  and  un- 
certain implications.  In  this  case  we  do  not  think  it  could 
be  held  as  matter  of  law  that  the  railroad  company  was 
guilty  of  a  violation  of  the  statute.  In  view  of  the  evidence 
given  at  the  trial,  it  was  a  question  for  the  jury  to  determine 
as  one  of  fact  whether  the  railroad  company  should,  if  it 
had  used  reasonable  diligence,  have  put  the  coupling  in  re- 
pair before  the  accident  happened.  "^°    "  It  is  urged  that,  if 

^°  "As  we  have  said,  questions  those  decisions  are  tlie  views  ex- 
have  heretofore  arisen  in  the  pressed  in  United  States  v.  Soutli- 
courts  upon  the  construction  and  ern  Ry.  Co.  135  Fed.  Rep.  122,  by- 
application  of  this  statute,  among  Judge  Humphrey;  by  Judge  Wliit- 
them  the  question  most  fully  con-  son  in  United  States  v.  Great,  etc., 
sidered  here;  and  tliere  is  some  Ry.  Co.  150  Fed.  Rep.  229,  and 
conflict  in  their  decisions.,  In  possibly  for  the  Circuit  Court  of 
United  States  v.  Atchison,  etc.,  R.  Appeals  for  the  Eighth  Circuit,  in 
Co.  150  Fed.  Rep.  442;  Voelker  v.  Chicago,  etc.,  Ry.  Co.  v.  Voelker, 
Chicago,  etc.,  Ry.  Co.  116  Fed.  129  Fed.  Rep.  522:  65  C.  C.  A. 
Rep.  867 :  United  States  v.  Illinois  226 ;  70  L.  R.  A.  264,  where  the 
Cent.  R.  Co.  156  Fed.  Rep.  185;  court  Avas  reviewing  the  ruling  of 
Elmore  v.  Seaboard  Air  Line  R.  Judge  Shiras  in  116  Fed.  Rep.  867, 
Co.  130  N.  C.  506;  41  S.  E.  Rep.  supra.  We  say  'possibly,'  because 
786,  and  Missouri  Pac.  Ry.  Co.  v.  there  are  several  reasons  for  think- 
Brinkmeier  (Kan.)  93  Pac.  Rep.  ing  that  the  Court  of  Appeals  did 
621;  50  Am.  &  Eng.  R.  Cas.  441;  not  intend  to  decide  anything  to 
similar  views  in  regard  to  this  stat-  the  contrary  of  the  construction  of 
ute  to  those  we  have  indicated  as  the  statute  which  we  approve, 
our  own  were  expressed.  It  is  There  were  two  counts  in  the  pe- 
proper  to  observe  that  the  views  tition;  one  upon  the  statute,  and 
of  Judge  Shiras  in  the  Voelker  the  other  upon  the  common  law 
case,  116  Fed.  Rep.  867,  are  not  liability  for  negligence.  Upon  the 
there  so  clearly  stated  as  in  his  first  count  the  court  below  liad 
charge  to  the  jury  printed  in  the  charged  the  jury  in  respect  to  the 
record  of  that  case,  with  which  we  statutory  liability  in  accordance 
have   been    supplied.      Opposed    to  with  the  view  we  take  of  it,  and 


440 


FEDERAL,   SAFETY   APPLIANCE  ACT. 


the  courts  fail  to  give  the  statute  the  construction  that  it 
imposes  an  absolute  duty,  it  defeats  the  purpose  of  Congress 
in  enacting  it,  and  leaves  the  obligation  of  the  carrier  as 
vague  as  before.  But  we  see  no  reason  for  this  contention. 
The  benefit  of  the  equipment  of  the  cars  with  that  kind  of 
'safety  appliances'  and  the  maintenance  thereof,  which,  as 
we  think,  was  the  purpose  of  the  law,  is  secured.  The  ques- 
tion about  which  the  difference  arises  is  simply  whether,  in 
addition  to  supplying  and  maintaining  the  appliances,  the 
carrier  is  absolutely  bound  to  insure  their  constant  good 
order,  or  whether  it  is  bound  only  to  the  extent  of  its  best 
endeavor.  The  question  whether  it  has  fulfilled  its  duty  in 
the  latter  respect  is  no  more  difficult  of  determination  than 
such  as  are  constantly  arising  in  cases  where  negligence  is 
charged  in  other  conditions. ' '  ^^  But  this  case  was  reversed 
on  appeal,  and  the  rule  here  laid  down  expressly  denied."^ 


the  Circuit  Court  of  Appeals  af- 
firmed that  ruling.  It  appears 
from  the  report  that  the  railroad 
company  made  three  points  for 
reversal,  neither  of  which  present- 
ed the  question  here  presented. 
The  court  negatived  each  of  them, 
and  naturally  did  not  go  into  ques- 
tions not  raised.  It  reversed  the 
judgment  upon  another  ground. 
It  seems  obvious  enough  that  it  ia 
not  an  adverse  decision.  If  we  had 
thought  it  otherwise,  we  would 
have  more  anxiety  about  the  cor- 
rectness of  our  view.  rJudge 
Humphrey  expressed  an  adverse 
opinion,  but  he  finally  rested  his 
judgment  upon  another  ground. 
But  Judge  Whitson  cited  Judge 
Humphrey's  opinion,  and  adopted 
the  view  which  1  ad  been  expressed 
by  him  but  not  made  the  final 
ground  of  decision." 

"  St.  Louis,  etc.,  R.  Co.  v.  Delk, 
158  Fed.  Rep.  0.31;  80  C.  C.  A.  05; 
14  A.  &  E.  Ann.  Cas.  233;  reversed 
in  220  U.  S.  578;  31  Sup.  Ct.  017; 
55  L.  Ed.  590. 

If  aj)pliance3  are  at  liand  so 
tliat  they  ciin  be  readilj  made,  re- 


pairs must  be  at  once  made.  "But 
if  such  means  and  appliances  were 
not  at  hand  to  so  remedy  the  said 
defects,  the  defendant  would  have 
the  right,  without  incurring  the 
penalty  of  the  law,  to  have  such 
cars  upon  which  said  air  brakes 
so  became  defective  or  inoperative 
hauled  to  the  nearest  repair  point 
on  its  line  of  railroad  where  such 
defects  could  be  repaired  and  the 
cars  and  air  brakes  put  in  opera- 
tive condition;  but  if  such  defecta 
existed  at  a  repair  point  or  other 
place  where  they  could  be  repaired, 
as  before  stated,  then  if  the  defend- 
ant ran  tlie  train  from  such  place 
when  75  per  cent,  of  the  cars  there- 
in were  not  so  equipped  with  oper- 
ative air  brakes  as  required  by 
law,  it  is  liable  for  the  penalty  of 
$100  for  so  running  such  train." 
United  States  v.  Chicago,  etc.,  R. 
Oo.  163  Fed.  Rep.  775;  United 
States  V.  Atcliison,  etc.,  R.  Co.  167 
Fed.  690  (Appendix  G)  ;  United 
Statas  V.  Southern  Pac.  Co.  167 
Fed.  099  (Appendix  G). 
1  la  See  Section  288. 


KKPAIRS. 


441 


§  292.  Hauling'  car  to  nearest  repairing  point. — Much 
•aonfusion  having  arisen  in  the  courts,  as  shown  in  the  suc- 
ceeding sections,  with  reference  to  the  duty  of  a  railroad 
to  make  immediate  repair  while  cars  were  in  motion  or 
transit,  Congress  took  up  the  subject  in  1910  and  enacted 
a  statute  covering  that  and  other  requirements  with  ref- 
erence to  the  equipment  of  cars.  According  to  that  Act 
"all  cars  must  be  equipped  with  secure  sill  steps  and  effi- 
cient handbrakes;  all  cars  requiring  ladders  and  secure 
running  boards  shall  be  equipped  with  such  ladders  and 
running  boards,  and  all  cars  having  ladders  shall  shall  also 
be  equipped  with  secure  handholds  or  grabirons  on  their 
roofs  at  the  top  of  such  ladder."  "^  By  section  four  of  this 
Act  it  is  provided  that  if  a  car  has  been  properly  equipped 
as  above  stated,  **and  such  equipment  shall  become  defective 
or  insecure  while  such  car  was  being  used  by  such  carrier 
upon  its  line  of  railroad,  such  car  may  be  hauled  from  the 
place  where  such  equipment  was  first  discovered  to  be  de- 
fective or  insecure  to  the  nearest  available  point  where  such 
car  can  be  repaired,  without  liability  for  the  penalties  im- 
posed by  section  four  of  this  Act  or  section  six  of  the  Act 
of  March  2,  1893,  as  amended  by  the  Act  of  April  1, 
1896,^^^=  if  such  movement  is  necessary  to  make  such  repairs 
and  such  repairs  cannot  be  made,  except  that  such  repair 
shall  be  at  the  sole  risk  of  the  carrier,  and  nothing  in  this 
section  shall  be  construed  to  relieve  such  carrier  from  lia- 
bility in  any  remedial  action  for  the  death  or  injury  of  any 
railroad  employee  caused  to  such  employee  by  reason  of 
or  in  connection  with  the  movement  or  hauling  of  such  car 
with  such  equipment  which  is  defective  or  insecure,  or  which 
is  not  maintained  in  accordance  with  the  requirements  of 
this  Act  and  ihe  other  Acts  herein  referred  to ;  and  nothing 
in  this  proviso  shall  be  construed  to  permit  the  hauling  of 
defective  cars  by  means  of  chains  instead  of  drawbars,  in 
revenue  trains  or  in  association  with  other  cars  that  are 

lib  This  statute  is  set  out  in  full  "c  The  Safety  Appliance  Acts, 

in  Appendix  D. 


442  FEDERAL,   SAFETY  APPLIANCE  ACT. 

eommereiallT  used,  unless  such  defective  cars  contain  live 
stock  or  ''perishable  freight."  As  these  provisions  are  in  a 
proviso,  the  burden  is  on  the  railway  company  to  show  that 
it  comes  within  its  provisions.  If  a  car  becomes  defective 
while  in  transit,  or  while  not  in  use  in  a  switchyard,  it  may 
be  "hauled  from  the  place  where"  it  is  "first  discovered 
to  be  defective  or  insecure  to  the  nearest  available  point 
where  such  ear  can  be  repaired."  But  if  the  movement 
is  not  necessary  to  repair  it,  that  is,  if  the  car  can 
be  repaired  at  the  place  where  it  is  discovered  to  be 
cut  of  repair,  then  it  must  be  repaired  there  without 
its  being  moved.  The  statute  only  permits  the  movement 
of  the  defective  car  when  it  cannot  be  repaired  at  the  point 
of  discovery  and  it  is  necessary  to  take  it  to  a  repairing 
point,  and  that  point  must  be  "the  nearest  available  point." 
In  hauling  the  defective  car  "to  the  nearest  available 
point"  for  repairs  it  cannot  be  hauled  "by  means  of  chains 
instead  of  drawbars,  in  revenue  trains  or  in  association 
with  other  cars  that  are  commercially  used,  unless"  it  con- 
tains "live  stock  or  'perishable  freight.'  "  These  provi- 
sions only  excuse  the  railway  company  from  the  penalties 
inflicted  by  the  Safety  Appliance  Acts,  and  does  not  excuse 
it  "from  liability  in  any  remedial  action  for  the  death  or 
injury  of  any  railroad  employee  caused  to"  him  "by  reason 
of  or  in  connection  with  the  movement  or  hauUng  of  such 
car  with  equipment  which  is  defective  or  insecure  or  which 
is  not  maintained  in  accordance  with  the  requirements  of" 
the  Act  of  1910,  or  the  Safety  Appliance  Acts.  This  Act  of 
1910  only  applies  to  defects  in  the  particulars  specified  in 
that  act  and  in  the  Safety  Appliance  Act;  and  if  the  car 
is  defective  in  other  respects — that  is,  in  those  parts  that 
the  statute  makes  no  reference  to — the  car  may  be  removed 
without  incurring  any  penalty,  and  without  any  liability  to 
an  employee  for  injuries  except  such  as.  imder  the  particular 
circumstances,  the  statute  imposes.  If  a  car  cannot  be  re- 
moved, except  -with  the  use  of  chains,  and  it  cannot  be 
repaired  at  the  point  of  discovery,  then  it  must  be  taken 


REPAIRS. 


443 


out  of  the  "revenue"  train  in  which  it  is  being  hauled,  "or 
in  association  with  other  cars  that  are  commercially  used," 
and  hauled  separately  to  a  repairing  point,  unless  it  con- 
tain live  stock  or  perishable  freight.  As  the  Supreme  Court 
of  the  United  States  has  held  that  the  Federal  Appliance 
Acts  applies  to  defectively  equipped  cars  hauled  in  intra- 
state trains,^^*  it  necessarilj^  follows  that  a  car  cannot  be 
hauled  with  chains  in  such  a  train  to  a  repairing  point 
unless  loaded  with  live  stock  or  perishable  freight.  It  is 
also  to  be  observed  that  a  defective  car  cannot  be  hauled  to 
a  repairing  point  unless  the  "movement  is  necessary  to 
make  such  repairs  and  such  repairs  cannot  be  made  at  such 
repair  point."  If  the  repairs  can  be  made  at  the  place 
where  the  ear  becomes  defective  (or  its  condition  discov- 
ered), then  it  must  be  repaired  there  before  movement,  even 
if  the  car  be  loaded  with  live  stock  or  perishable  freight. 
Of  course,  the  question  will  arise  whether  or  not  the  repairs 
could  have  been  made  at  the  place  where  the  defect  was 
discovered.  If  the  repairs  can  there  be  made,  the  decisions 
seem  to  contemplate  it  being  made  while  the  car  is  in  the 
train;  and  to  move  it  for  the  purpose  of  putting  it  on  a 
switch  or  another  track  where  it  could  be  repaired  would 
seem  to  be  an  offense.  In  one  case,  decided  before  this 
statute  of  1910  was  enacted,  it  was  held  error  for  the  court 
to  say  to  the  jury  that  a  railway  company  can  haul  a  car 
to  a  place  to  be  repaired  if  reasonably  necessary.""  The 
railway  company  must  make  reasonable  provisions  and  use 
reasonable  skill  and  exertions  to  repair  defective  cars  at 
the  point  where  their  condition  is  first  discovered,  but  is  not 

"•  Section  243.  v.  United  States,  199  Fed.  891;  118 
"» United  States  v.  Southern  Pacific  C.  C.  A.  339;  United  States  v.  South- 
Co.  169  Fed.  407.  ern  Pacific  Co.  154  Fed.  897;  United 
That  a  defective  car  could  be  States  v.  Chicago  G.  W.  Ry.  Co.  162 
hauled  to  a  repair  shop  before  the  Fed.  775;  United  States  v.  T.  &  S. 
enactment  of  this  statute,  see  United  F.  Ry.  Co.  167  Fed.  696;  United 
States  V.  Rio  Grande  Western  Ry.  States  v.  Southern  Pacific  Co.  167 
Co.  173  Fed.  399;  Chicago  &  N.  W.  Fed.  699;  Chicago,  M.  &  St.  P.  Ry. 
Ry.  Co.  V.  United  States,  168  Fed.  Co.  v.  United  States,  165  Fed.  423; 
236;  93  C.  C.  A.  4.50;  21  L.  R.  A.  United  States  v.  St.  Louis,  I.  M.  & 
(N.  S.)  690;  Southern  Ry.  Co.  v.  S.  Ry.  Co.  154  Fed.  516. 
Snyder,  187  Fed.  492;  Southern  Ry.  Under  the  Illinois  statute  it  is  not 
Co.  V.  Snyder,  205  Fed.  868;  124  an  offense  to  take  a  defective  car 
C.  C.  A.  60;  Siegel  v.  New  York  to  a  repair  shop.  Kelly  v.  Illinois 
Central  &  H.  R.  R.  Co.  178  Fed.  Central  R.  Co.  140  III.  App.  125. 
873:  Galveston,  H.  &  S.  A.  Ry.  Co. 


444  FEDERAL,   SAFETY   APl-LIANCE   ACT. 

bound  to  involve  itself  in  an  unusual  expense  or  use  unusual 
exertions  in  order  to  then  repair  them/^* 

§  293.     Destination   of    car   nearer   than   repair   shop. — 

Where  the  destination  of  a  car  was  nearer  than  the  repair 
shops,  to  which,  in  order  to  repair  it,  it  was  necessary  to 
take  the  car,  it  was  held  that  the  company  was  not  bound 
to  take  the  car  to  the  repair  shops  to  repair  its  coupler  be- 
fore delivering  it  at  its  destination,  having  it  unloaded,  and 
then  take  it  to  the  shops.  "The  court  thinks  that  the  testi- 
mony fails  to  show  beyond  a  reasonable  doubt  the  existence 
of  every  element  necessary  to  constitute  the  offense  alleged 
in  the  petition,  within  the  true  intent  and  meaning  of  the 
act  of  Congress,  and  will,  therefore,  find  and  adjudge  that 
the  defendant  is  not  guilty  as  charged  in  the  petition.  And 
any  other  result  would  be  obviously  unjust  and  oppressive, 
and  not  warranted,  we  think,  by  any  sensil)le  construction 
of  the  statute.     The  only  use  of  the  car  by  the  defendant 

"*  United  States  V.  Northern  Pac.  Rv.    Co,     162    Fed.    775;     Unite;l 

Ry.  Co.  (unreported)  Dec.  6,  1913.  States  v.  AtcMson,  T.  &  S.  F.  Ry. 

Before  the  enactment  of  this  statute  ^'  Appendix  G ;  United  States  v. 

. ,  „    ^      „        .  Atchison,  T.  &  S.  F.  Ry.  €o.  167 

it  was  said  that  a    carrier  may  move  ^    ,    „^/    tt   -j.  j  oj.  x  o     xi 

,       ,  ,  Fed.  696;  United  States  v.  South' 

one  or  more  cars  by  themselves  to  re-  ^^.^     ^^^^^    ^^      ^^^     p^^^     ggg. 

pair  shops  for  the  purpose  of  having  i^jnited  'States   v.   Baltimore   &    0. 

them  placed  in  a  condition  to  conform  r,  (^   Appendix  G :  United  States 

to  the  Safety  Appliance  Acts  without  v.  Ix)uis'ville  &  N.  R.  Co.  156  Fed. 

being  guilty  of  a  violation  of  those  j93_ 

a.-ts  while  it  is  engaged  in  an  honest  r^'^g  railway  company  must  have 
effort  to  meet  their  requirements.  ^  ^^  repair' points  materials  and 
Chicago  &  N.  W.  Ry.  Co.  v.  I  nited  ,.,.,.  ^  ,  ,  n 
States,  168  Fed.  236;  United  States  v.  facilities  necessary  to  make  all  re- 
Rio  Grande  W.  Ry.  Co.  174  Fed.  399;  pairs,  and  it  must  use  reasonable 
Chicago,  M.  &  St.  P.  Ry.  Co.  v.  foresight  in  providing  the  materials 
United  States,  165  Fed.  423;  United  and  facilities  for  siicli  purpose. 
States  v.  St.  Louis,  I.  M.  &  S.  Ry.  Co.  United  States  v.  Southern  Pacific 
154  Fed.  516.  ,  ,,  ,  Co.  Appendix  G;  United  States  v. 
A  number  of  the  cases  hold  that  j^^^^^j^^^n  Pacific  Co.  167  Fed.  6-99; 
they  could  be  removed  to  the  tt  -i.  i  oi.  x  ax  i  •  rr  e  a 
"nearest  repair  point"  in  a  train  I^^n.ted  States  v.  Atchison,  T  &  S. 
with  other  cars.  United  States  v.  ^-  Rj-  Co.  1(.7  l^ed.  696;  United 
Southern  Patnfic  Co.  154  Fed.  897;  States  v.  Atdiison,  T.  &  S.  F.  Ry. 
United    States    v.    Chicago    G.    W.  Oo.  Appendix  G. 


REPAIKS.  445 

was  to  get  it  as  speedily  as  possible  off  the  busy  track  and 
to  the  place  where  the  defects  in  the  coupling  could  be  sirp- 
plied.  Unloading  it  at  Ewald's^-  was  an  incident  in  the 
accomplishment  of  this  object.  No  course  could  well  have 
been  more  reasonable  under  the  circumstances  than  the  one 
pursued,  and  there  was  no  testimony  offered  by  the  govern- 
ment tending  to  show  that  such  defects  could  practically 
have  been  remedied  away  from  repairing  points.  It  was  not 
the  case  of  a  handhold  merely,  as  to  which  the  case  of  putting 
one  on  is  obvious."  ^^ 

§  294.  Removal  from  a  repair  point  without  statutory 
repairs  being  made. — While  the  statute  permits  in  certain 
instances  defective  cars  to  be  removed  to  repair  points,  yet 
it  does  not  permit  the  removal  of  a  defective  car  from  a 
repair  point  without  repairs  of  statutory  defects  being  made. 
Thus  in  one  case  it  w^as  said :  ' '  But  if  such  defective  or 
inoperative  condition  of  the  couplers  and  grabirons  existed 
at  a  repair  point  on  defendant's  line,  or  at  a  place  where 
such  defects  could  have  been  remedied,  then  if  it  hauled  the 
car  or  cars  from  such  place  in  such  condition,  it  would  do 
so  at  its  peril  and  be  liable  for  the  statutory  penalty  for  so 

12  The  place  of  its  destination,  a  the  defect  was  discovered  or  was 
yard  in  the  same  city  with  the  ic-  occasioned.  The  fact  that  it  could 
pair    shops.  not  have  been  there  repaired  was  a 

13  United  States  v.  Louisville,  burden  imposed  upon  the  defendant 
etc.,  R.  Oo.  156  Fed.  Rep.  195.  to  show.  See  United  States  v. 
But  the  government  was  not  re-  Illinois  Central  R.  Oo.  170  Fed. 
quired  to   show  the   repairs  could  542. 

have  been  made  at  the  point  where 


446  FEDERAL   SAFETY  APPLIANCE  ACT, 

Lauling  or  using  such  car."^    And  so  it  is  clear  that  it  can- 
not be  hauled  from  one  repairing  point  to  another.- 

§  295.  Repairing  cars  in  transit.— If  the  couplers  are 
capable  of  repair,  in  respect  that  the  law  requires,  without 
the  necessity  of  taking  them  to  the  repair  shops,  they  must 
be  then  repaired  "before  moving  the  cars  farther  upon  their 
journey.  I  say  farther  upon  their  journey,  because  the  cars 
were  yet  in  transit;  the  point  of  destination  had  not  been 
reached,  nor  was  it  reached  until  they  were  set  in  at  the 
place  of  unloading.  The  chain  coupling,  the  lock  pin  with 
the  lever,  is  a  very  simple  device,  consisting  of  a  few  links 
of  a  small  chain,  easily  attachable  with  the  aid  of  light 
tools,  and  there  exists  no  reason  why  it  should  not  be  readily 
repaired  or  replaced  at  any  stage  in  the  journey  without 
serious  or  material  inconvenience  or  delay.  In  discussing 
this  phase  of  the  question.  Judge  Wolverton  of  the  District 
Court  for  the  District  of  Oregon  said:  'But  if  I  am  in 
error  as  to  the  fact  of  the  readiness  with  which  the  repairs 
can  be  made,  then  the  other  phase  of  the  question  arises, 
which  is,  whether  the  cars  should  have  been  taken  to  the 
car  shops  for  repair  before  being  carried  on  the     terminal 

'  United  States  v.  Chicago  G.  W.       Fed.  696;  United  States  v.  Southern 
Ry.  Co.  162  Fed.  775;  United  States      Pacific  Co.  167  Fed.  699. 
V.  Atchison,  T.  &  S.  F.  Uy.  Co.  167  -  Snyder     v.     Southern     Ry.     Co. 

(unreported). 


REPAIRS.  447 

yards  for  nnloadinpr.  It  is  urged  that  the  court  should  take 
into  oonsideration  the  convenience  and  practicability  of  re- 
pairing: the  defects.  To  he  understood,  it  should  be  said  that 
the  term  impracticable  is  not  employed  in  the  answer  to  in- 
dicate thnt  it  wRs  impossible  to  set  the  cars  out  and  take  them 
to  the  repair  shops  before  carrying  them  on  their  journey, 
but  that  it  was  impracticable  so  to  do  in  the  sense  that  it 
would  unduly  impede  and  interfere  with  the  transportation 
of  freight  by  ears,  and  in  special  instances  might  result  in  loss 
to  either  the  shipper  or  carrier,  or  to  both,  as  in  the  case 
where  pprishable  sroods  were  being  transported.  While  Con- 
gress may  have  taken  into  consideration,  and  presumably 
did,  the  inconvenience  to  railroad  companies  in  providing 
equipment  of  the  character  here  under  consideration,  and  in 
keeping  the  same  in  repair,  yet  by  its  positive  enactment  it 
manifestly  considered  the  safety  of  the  brakeman  and  em- 
ployes who  are  charged  with  the  duty  of  coupling  and  un- 
coupling cars  paramount;  and,  having  made  no  exception  in 
terms,  the  natural  conclusion  is  that  the  act  was  intended  to 
apply  in  all  cases  where  the  cars  were  being  used  in  moving 
interstate  traffic.  Admittedly,  if  a  breakage  occurs  between 
stations  where  repair  shops  are  located,  and  the  repair  cannot 
be  made  without  taking  the  car  to  such  a  place,  the  company 
cannot  be  held  liable  until  it  has  had  the  opportunity  of 
making  the  repair,  and  in  that  event  it  would  be  justified  in 
hauling  the  car  in  the  train  to  the  succeeding  station  where 
such  repairs  could  be  made.  This  does  not,  however,  give  to 
the  company  the  discretion  of  carrying  the  car  forward  to 
repair  shops  at  destination.  If  it  were  permissible  to  carry 
the  car  by  one  repair  shop  to  another,  where  the  repair  could 
be  more  conveniently  made,  then  it  could,  with  equal  pro- 
priety, be  claimed  that  the  car  might  be  carried  by  and  be- 
yond two  or  more  of  such  stations,  and,  indeed,  to  cover  an 
entire  journey  from  the  Middle  West  to  the  Pacific  seaboard. 
This  would  detract  vitally  from  the  utility  of  the  law,  as 
brakemen  might,  in  the  course  of  such  a  haul,  be  required 
to  pass  many  times  between  the  cars  for  the  coupling  and 


448  FEDERAL  SAFETY  APPLIANCE  ACT. 

uncoupling  of  the  particular  car  or  ears  with  defective 
equipment.  An  illustration  is  afforded  by  what  was  done  in 
this  case.  After  the  cars  were  taken  into  the  terminal  yards, 
it  was  necessary  to  uncouple  them  to  set  them  out  for  un- 
loading and  to  couple  them  again  for  transportation  to  the 
Southern  Pacific  Company's  car  shops,  with  possible  other 
couplings  and  uncouplings  to  be  made.  So  that  the  danger 
to  the  brakeman  continued,  and  must  needs  have  continued, 
until  relieved  by  the  proper  repairs  being  made.  I  am  con- 
strained to  the  view,  therefore,  that  this  is  just  the  danger 
that  Congress  intended  to  relieve  against  by  the  adoption  of 
the  act.  and  that  it  is  what  the  defendant's  duty  required  it 
to  relieve  against  by  making  the  repair  of  the  defects  prior 
to  taking  the  cars  into  the  terminal  company's  yards.  The 
shortness  of  the  haul  does  not  alter  the  case.  We  may  sup- 
pose that  a  defect  existed  while  the  car  was  being  carried 
from  beyond  the  Dalles,  where  the  Oregon  Railway  &  Navi- 
gation Company  has  repair  shops.  It  would  have  been  a 
violation  of  the  act  for  that  company  to  have  hauled  the  cars 
from  the  Dalles  to  Portland  without  correcting  the  defect; 
and  so  it  is,  in  like  manner,  a  violation  of  the  act  for  the 
Southern  Pacific  Company  to  take  up  the  cars  at  East  Port- 
land and  haul  them  for  the  distance  of  only  a  half  mile, 
and  there  deliver  them  to  a  company  whose  duty  it  is  to 
transact  terminal  business,  where  the  chief  work  is  in  shift- 
ing cars  from  one  train  to  another,  and  a  vast  amount  of 
coupling  and  uncoupling  is  done,  and  the  greatest  danger  is 
present.  To  hold  otherwise  would  defeat  in  large  measure 
the  paramount  purpose  and  object  of  the  law.  The  demurrers 
to  the  answers  should,  therefore,  be  sustained,  and  it  is  so 
ordered."'"* 

14  United  States  v.  Southern  Pac.  United    States    v.    Oliicago    Great 

Co.   154   Fed.  Rep.  897.     See,  also.  Western    Ry.    Co.    162    Fed.    775; 

United  States  v.  Atlantic  Ry.  Co.  Chicago,  M.  &  iSt.   P.   Ry.  Co.   v. 

15.3  Fed.  Rep.  918;  United  States  United     States,      Ifio      Fed.     423; 

V.   Atchison,   T.    &    S.   F.   Ry.   Co.  United  States  v.  Chicago  &  N.  W. 

^r,^    Fed.    696;    United    States   v.  Ry.  Co.   157   Fed.  616. 
Southern  Pacific  Co.  167  Fed.  699; 


KKPAIRS.  ^^9 

§  296.  Repairs  during  journey. — Whenever  repairs  can 
be  made  (or  at  least  can  be  reasonably  made  according  to 
the  reasoning  of  some  of  the  cases)  during  the  journey  they 
must  be  so  made ;  but  if  they  cannot  be  so  made,  then  they 
must  be  done  at  the  nearest  repair  shop  ;^^  and  a  carrier  can- 
not excuse  a  failure  to  repair  a  statutory  defect  at  the  point 
of  its  discovery  by  showing  that  the  car  involved  was  also 
defective  in  other  respects  which  could  have  been  repaired 
only  at  the  point  to  which  the  car  was  moved.^ 

§297.    Establishing  repair  shops  and  material. — "It  is 

certainly  reasonable  that  a  railroad  company  should  be  re- 
quired to  maintain  shops  or  repair  material  and  make  in- 
spections and  repairs  at  places  within  reasonable  distance 
of  each  other;  that  in  establishing  such  repair  points  the 
company  has  the  right,  in  the  ordinary  operation  of  their 
trains  between  those  repair  points,  when  a  train  is  in  opera- 
tion and  defects  arise  reasonably  to  carry  the  car  the  appli- 
ances on  which  are  broken  or  defective  to  the  first  repair 
point,  but  they  do  not  have  the  right,  having  carried  it  to 
that  point,  to  take  it  beyond  that  point  without  discovering 
and  making  the  necessary  repairs  to  those  safety  appliances 
attached  to  that  car,  and  if  they  do  carry  it  beyond  that 
point,  they  are  liable  to  the  penalty  provided  by  this 
law."^^* 

§  298.  Knowledge  of  defect  not  an  element  of  the  of- 
fense.— It  has  been  held  that  knowledge  of  the  defective 
coupling  is  not  an  element  of  the  offense.  In  a  charge  to  the 
jury,  Judge  Hunger  of  the  United  States  Court  for  the 
District  of  Nebraska,  said:  "There  is  considerable  con- 
trariety of  opinion  between  the  different  courts  as  to  the 
proper  construction  of  this  act.     I  have  reached  the  conclu- 

is  United     States     v.     Southern  Co.  v.  United  States,  165  Fed.  Rep. 

Pac.   Ry.   Co.    154   Fed.   Rep.   897;  423;    United    States    v.    Southern 

United  "states  v.  Chicago,  etc.,  Ry.  Pac.    Co.    167    Fed.    699     (Appen- 

Co.    149    Fed.   Rep.   486;    Chicago,  dix   G)  ;    United   States   v.   Atchi- 

etc,  R.  Co.  V.  King,  169  Fed.  Rep.  son.  T.  &   S.  F.  Ry.  Co.   167  Fed. 

372.  696;    United    States   v.   Baltimore 

15*  United  States    v.    Baltimore,  &   0.  R.   Co.  Ap]>endix  G:    Unite-l 

etc.,  R.  Co.  (Appendix  G)  ;  United  States  v.  Southern  Pacific  Co.  Ap- 

States  V.  Chicago,  etc..  R.  Co.  162  pendix  G. 

Fed,    Rep.    775;    Chicago,   etc.,    R.  »  T'nited  States  v.  Southern  Pacific 

Co.  154  Fed.  S97. 


450  FEDERAL  SAFETY  APPLIANCE  ACT. 

sion  that  knowledge  is  not  an  element  of  the  offense  under 
the  statute.     The  chief  purpose  of  the  act  of  Congress,  as 
pronounced  by  the  various  courts  that  have  passed  upon  it, 
was  the  protection  of  the  lives  and  the  safety  of  the  train- 
men who  have  occasion  to  pass  between  the  cars  or  to  work 
in  and  about  them,  and  the  act  should  be  construed  so  as  to 
give  this  intent  full   force,   if  such   a  construction   can  be 
given  to  the  act  without  doing  violence  to  the  language.    Any 
other  construction  than  this  requires,  not  only  that  the  carrier 
should  fail  to  have  the  cars  properly  equipped,  but  also  that 
the  defect  should  have  existed  for  such  a  length  of  time  as 
would  reasonably  allow  the  presumption  of  inspection  and 
notice  on  the  part  of  the  carrier.     That  interval  would  then 
depend  upon  the  verdict  of  the  jury  in  each  instance — in 
some  eases  it  might  exist  onlj''  for  an  hour;  in  other  cases  it 
might  exist  for  days,  or  for  a  sufficient  number  of  hours  to 
move  from  one  inspecting  station  on  the  railway  to  another 
inspecting  station.     This  construction  of  the  act  concludes 
that  Congress  did  not  intend  to  protect  the  lives  or  provide 
for  the  safety  of  a  train  crew  during  such  period  as  the  jury 
should  find  would  be  sufficient  for  the  company  in  the  ordi- 
nary method  of  doing  business  to  discover  and  remedy  this 
defect.     This  seems  to  me  an  unreasonable  construction.     If 
the  offense  that  is  specifically  charged  here  depends  upon  its 
being  knowingly  committed,  it  would  seem  that  under  each 
section  of  this  act,  in  order  to  render  a  railway  guilty  of  non- 
compliance, such  an  offense  should  be  knowingly  committed, 
and  that  leads  to  what  seems  to  me  an  absurdity.     For  in- 
stance, the  fifth  section  of  the  act  requires  that  the  standard 
height  of  the  draw  bar  above  the  top  of  the  rails  is  to  be  fixed 
at  a  certain  distance,  from  which  distance  a  maximum  varia- 
tion is  allowed.     If  the  act  is  not  violated  when  there  is  a 
variation  within    that    maximum    distance    then    it    would 
appear  that  if  there   is  an   additional  variation  of   another 
inch,     or    2    ov    'A    inches,     not     knowingly     allowed,     and 
there     has     been     ordinary     care     and    diligence     used,     no 
offense     is     committed     under     this     act.       By     the     same 
process    of    reasoning     under     Section  2    of    the     amended 


REPAIRS.  451 

act,  it  would  not  be  a  violation  of  the  law  to 
have  less  than  the  designated  percentage  of  cars  operated  by 
power  brakes,  but  such  less  percentage  must  be  known  to  the 
company."^*'  "While  the  decision  in  the  case  of  the  United 
States  V.  A.,  T.  &  S.  F.  E.  R.  (D.  C.)''  is  to  the  contrary, 
yet  it  seems  to  me  that.  Congress  having  the  power  to  make 
certain  acts  an  offense  regardless  of  laiowledge,  and  having 
failed  to  make  knowledge  an  element  by  express  words  in 
this  act,  it  must  have  been  within  the  contemplation  of  Con- 
gress that  accidents  were  liable  to  occur  between  stations  and 
for  some  time  before  repairs  could  be  made,  and  that,  there- 
fore, the  failure  to  include  knowledge  as  an  element  of  the 
offense  must  have  been  present  in  the  mind  of  the  enacting 
body.  Its  omission  was  intentional  in  order  that  this  statute 
might  induce  such  a  high  degree  of  care  and  diligence  on 
the  part  of  the  railroad  company  as  to  necessitate  a  change 
in  the  manner  of  inspecting  appliances,  and  to  protect  the 
lives  and  the  safety  of  its  employes,  provided  the  accident 
occurs  from  a  defective  appliance  such  as  is  designated  in 
this  act."i« 

§  299.  Failure  to  provide  or  repair  defective  hand- 
hold.— A  car  came  into  the  company 's  yards  wltlioTit  a  grab 
iron  on  its  right  hand  side  of  the  end  on  which  the  brake- 

'^  "I  find  upon  an  examination  of  *'  l-'^O  Fed.  Rep.  442. 

the  opinions  cited  in  the  argument  ^  'Ignited  States  v.   Chicago    etc 

^,    ,   '  ,  .  1     •  •         1,  ,  R.  Co.  156  Fed.  Rep.  180.    See  case 

that  there  have  been  decisions  by  ^^^^^   ^^^^    g._      ^^^    reasoning    of 

a  number  of  courts,  all  holding,  in  ^^^jg  ^^^^  jg  ^^^^  supported  by  cases 

effect,     that    knowledge    and    dili-  decided  in  the  Supreme  Court.     See 

gence    are   not    ingredients    of   the  section  288.    United  States  v.  Trinity 

offense.      United   States  v.   South-  &    B.    V.    Ry.    Co.    211    Fed.    448; 

ern  Ry.  Co.   (D.  C.)    135  Fed.  122;  Chicago   B.  &  Q.  Ry.  Co.  v.  United 

TT^jfo/i    «+o+l  ,.    p    AT    *    «5t    P  States.   170  Fed.  556;  9o  C.  C.  A. 

United   fetates  v.   C.   M    &   St    P.  ^^.^^^  g^^^^^  ^    Chicago,  B.  & 

Ry.    Co.,    149    Fed.    486;     United  q    ^y   ^o.  156  Fed.  180. 
States  V.  G.  N.   Ry.    (D.   C.)    150  The  case  of  United  States  v.  Atlan- 

Fed.  229;    United  States  v.   S.  P.  tic,  etc.,  R.  Co.  153  Fed.  Rep.  918, 

Ry.   (D.  C.)    154  Fed.  897;  United  did  not  adopt  the  doctrine  of  this 

States   V.   Atlantic,   etc.,  Ry.    (de-  case;  but  held  that  the  purpose  of  the 

cision  bv  Judge   Purnell,  May   11,  statute  was  to  make  the  railway  com- 

19071    I'^Q  Fed    qis"  Pa^Y    unconditionally    liable    for    a 

IJOO    lod  l^ed.  J18.  violation  of  the  statute. 


452  FEDERAL  SAFETY  APPLIANCE  ACT, 

staff  was  located,  known  as  the  "B"  end.^^  A  grab  iron  had 
been  upon  the  car.  In  that  condition,  on  the  day  of  its 
arrival,  the  company  hauled  it  to  other  yards  and  delivered 
it  to  a  connecting  carrier  in  that  condition.  It  was  loaded 
during  this  time  wath  interstate  traffic.  The  company  had 
facilities  for  repairing  it  both  at  its  yards  and  when  it  in- 
spected it,  but  failed  to  put  on  another  grab  iron.  It  was 
held  that  the  company  had  violated  the  statute  in  not  using 
the  proper  degree  of  diligence  to  make  the  repairs.  It  was 
said  that  the  grab  irons  were  used  in  the  yards  where  switch- 
ing was  done.-"  Secure  grab  irons  or  handholds  must  be 
put  on  the  end  of  a  car  where  they  are  reasonably  necessary 
in  order  to  afford  men  coupling  or  uncoupling  ears  greater 
security  than  would  be  afforded  them  in  the  absence  of  any 
grab  irons  or  handhold  at  that  point ;  but  if  some  other  ap- 
pliance, such  as  a  ladder  or  brake  lever,  which  afford 
equal  security  with  the  grab  irons  is  there,  the  statute  has 
not  been  violated.  Having  something  at  that  point  which 
performs  all  the  functions  of  a  grab  iron  is  the  same  as 
having  w^hat  is  properly  called  a  grab  iron  there.-*'* 

19  The  opposite  end  is  known  as  down  an  erroneous  rule  in  view  of 
"A"  end.  This  is  in  accordance  the  recent  decision  of  the  Supreme 
with  the  American  Car  Builder's  Court,  Section  243  ]  It  seems 
rules.  If  there  be  two  brake-staffs  plain  that,  if  the  cars  are  to  be 
upon  the  same  car,  the  end  toward  used  in  connection  with  each  other, 
which  the  cylinder  push  rod  travels  they  should  be  in  a  position  to  be 
is  known  as  the  "B"  end.  coupled  or  uncoupled,  so  that  the 

20  United  States  v.  Louisville,  danger  intended  to  be  avoided,  by 
etc.,  R.  Co.   156  Fed.   Rep.   193.  the    act    in    question,    would    be 

The  burden  is  on  the  government  imminent    in   case  of   the  absence 

to  show  there  were  no  grab  irons.  of    sufficient   handholds."     United 

United   States  v.  Boston  &  M.   R,  States  v.    Illinois    Central   R.    Co. 

Co.  1G8  Fed.  148.  166    Fed.    997;    United    States    v. 

20*  United  States  v.  Boston,  etc.,  Chicago  &  N.  W.  Ry.  Co.  157  Fed. 

R.  Co.  168  Fed.  148  (Appendix  G).  616;     United    States    v.     Wabash 

"Grab    irons    were    required    for  Terminal    Ry.    Co.    Appendix    G ; 

greater  safety  to  men  in  coupling  Dawson    v.    Chicago,    R.    I.    &    P. 

and  uncoupling  cars.     [Dawson  v.  Ry.    Co.    114    Fed.    870;     United 

Cliicago,    R    T.   Ry.    Co.    114    Fed,  States  v.  Boston  &  M.  R,  Co.  168 

870.1      Then,    if   the   defective  ear  Fed.  148;  Appendix  G. 
was  far  remote  from  the  interstate  A  man  coupling  tlie  air  hose  is 

cars   in   the   train,   there  couhl   be  engaged     in     coupling    the    train, 

no   fxissihle   danger   from   coupling  United   States  v.   Boston  &  M.   R. 

or  uncoupling.    [This  sentence  lays  Co.  168  Fed,  148, 


REPAIRS.  453 

§  300.    Burden  to  show  right  to  move  defective  car. — The 

statute  provides  that  if  a  ear  which  has  been  properly 
equipped  shall  become  defective  or  insecure  while  it  is  being 
used  by  the  carrier  upon  its  line  of  railroad  it  may  be  hauled 
from  the  place  where  its  equipment  was  first  discovered  to 
be  defective  or  insecure  to  the  nearest  available  point  where 
it  can  be  repaired  without  liability  for  any  penalty,  if  such 
movement  is  necessary  to  make  such  repairs  and  they  can- 
not be  made  except  at  such  repair  point.  As  these  provi- 
sions are  contained  in  an  exception  in  the  statute,  the  bur- 
den is  upon  the  defendant  to  show  that  it  comes  within  the 
exceptional  conditions  set  forth ;  and  this  it  must  clearly  do 
to  avoid  the  penal  provisions  of  the  statute.^  This  provision 
is  in  the  proviso  in  the  amendment  of  1910,  and  is  declara- 
tory of  the  judicial  interpretation,  it  has  been  stated, 
placed  upon  the  acts  as  previously  amended.-  The  carrier 
must  establish  the  necessity  of  the  movement  claimed  to 
have  been  made  for  the  purpose  of  repair,^  and  show  that 
the  defect  to  be  repaired  was  of  such  a  nature  that  it  could 
not  have  been  repaired  at  the  point  of  its  discovery.*  The 
necessity  of  a  movement  for  the  purpose  of  repairs  is  gen- 
erally a  question  for  the  jury.^  In  one  case  the  evidence 
was  as  follows,  as  outlined  by  the  court:  "The  proof  of  the 
plaintiff  showed  without  contradiction  the  existence  of  the 
defect,  and  that  the  car  while  this  defect  existed,  was  moved 
in  a  through  freight  train  engaged  in  interstate  commerce, 
from  Houston  to  Galveston.  The  defendant's  testimony 
tended  to  show  an  inspection  at  Tom  Ball,  the  divisional 
point,  and  that  all  cars  in  that  particular  train  were  prop- 
erly equipped ;  that  the  defendant  did  not  maintain  at 
Houston  a  repair  shop,  but  that  the  terminal  company  did 
repairs  for  it  in  cases  of  necessity;  that  defendant  did  not 

-United  States  v.  Trinity  &  B.  V.  ^United   States   v.   Chesapeake  & 

Ry.  Co.  211  Fed.  449;  United  States  Ohio  Ry.  Co.  213  Fed.  748;  Galves- 

V.    Kansas   City   Southern    Ry.   Co.  ton,   H.   &   S.  A.  Ry.  Co.   v.  United 

202  Fed.  828;  United  States  v.  Kan-  States,  199  Fed.  891;    118  C.   C.  A. 

sas  City  Southern  Ry.  Co.  189  Fed.  339;  Chicago,  B.  &    Q.    Ry.  Co.  211 

471.  Fed.  12;  127  C.  C.  A.  438. 

2  Galveston,  H.  &   S.   Ry.  Co.  v.  "Chicago,    B.    &    Q.    Ry.    Co.    v. 

United  States,  199  Fed.  891;  118  C.  United  States,  211  Fed.   12;   127  C. 

C.    A.    339.      See,    however.    United  C.  A.  438. 

States  V.  Colorado  Midland  Ry.  Co.  ^  Galveston,  H.  &  S.  A.  Rv.  Co.  v. 
202  Fed.  732. 


454  FEDERAL,  SAFETY  APPLIANCE  ACT. 

inspect  through  trains  at  that  point,  which  was  a  few  hours 
run  from  Tom  Ball ;  that  it  did  maintain  a  repair  shop  at 
Galveston,  which  was  a  few  hours  run  from  Houston.  There 
was  evidence  tending  to  show  that  the  defendant  was  not 
aware  of  the  defect  until  it  was  pointed  out  to  one  of  its 
employees  in  the  yard  at  Galveston.  For  the  purpose  of 
testing  the  correctness  of  the  court's  ruling  on  the  motion 
for  a  peremptory  instruction,  it  must  be  admitted  that  the 
car  was  equipped  properly  when  the  train  left  Tom  Ball 
to  be  carried  to  Galveston."  In  view  of  these  facts  the 
court  said:  "Unless  the  evidence  of  the  defendant  tends 
to  show  in  addition  to  the  facts  above  recited  to  wit :  (that 
the  car  was  properly  equipped  at  starting  on  the  journey, 
and  became  defective  while  being  used  on  the  line  of  rail- 
road of  defendant)  that  the  movement  of  the  car  in  the  train 
was  necessary  to  repair  the  defect  and  that  the  repair  could 
not  have  been  made  except  at  such  repair  point,  then  the 
defendant  has  not  brought  itself  under  the  proviso,  and 
there  was  no  question  of  disputed  facts  to  submit  to  the 
jury.  Certainly  there  is  no  evidence  in  the  record  that  in 
the  slightest  degree  tends  to  prove  these  last  mentioned  re- 
quisites. Bear  in  mind  that  under  the  Safety  Appliance  Act 
of  1893,  and  the  amendments,  that  ignorance  of  defects  does 
not  excuse.  The  duty  to  have  and  maintain  in  good  order 
the  safety  appliances  required  is  a  positive  duty  imposed 
on  the  carrier  by  the  statute,  and  that  the  defendant  in  the 
instant  case  seeks  to  avoid  responsibility  for  the  violation 
of  this  duty  by  pleading  the  provision  of  the  Act  of  1910.  By 
all  the  canons  of  construction  it  must  clearly  bring  itself 
within  the  terms  of  the  proviso  before  it  can  demand  im- 
munity." The  court  therefore  held  that  the  request  for  a 
peremptory  instruction  to  find  for  the  government  should 
have  been  given." 

United  States,  199  Fed.  891;  118  C.  Ry.  Co.  v.  United  States,  199  Fed. 

C.  A.  3:W.  891. 

The   proviso   of    1910   has   no   re-  "United  States  v.  Trinity  &  B.  V. 

trospoctivo  application  to  a  violation  Ily.  Co.  211  Fed.  449. 

of  the  ar-ts  previou.s  to  the  amend-  The   court  says  that  the   case  of 

ment.      United    States    v.    Colorado  Galveston,  II.  &  S.  v.  United  States, 

Midland  Ry.  Co.  202  Fed.  732;  121  199  Fed.  891;  118  C.  C.  A.  339  "does 

C.  C.  A.  194;  Galveston,  H.  &  S.  A.  not  militate  or  conflict"  with  these 

views. 


REPAIRS  455 

§301.  Use  of  "shims"— Common  law  duty  of  master 
not  applicable — Fellow  servant's  neglect — Construction  of 
statute— Hand  grips. — In  discussing  the  effect  of  this  stat- 
ute upon  the  duty  of  a  railroad  to  its  employes  and  the 
use  of  "shims"  to  raise  and  lower  the  draw  bar  to  the  legal 
height,  the  Supreme  Court  of  the  United  States  said:  "The 
evidence  showed  that  draw  bars  which,  as  originally  con- 
structed, are  of  standard  height,  were  lowered  by  the  natural 
effect  of  proper  use ;  that,  in  addition  to  the  correction  of 
this  tendency  by  general  repair,  devices  called  shims,  which 
are  metallic  wedges  of  different  thickness,  are  employed  to 
raise  and  lower  draw  bars  to  the  legal  standard ;  and  that  in 
the  caboose  of  this  train  the  railroad  furnished  a  sufficient 
supply  of  these  shims,  which  it  was  the  duty  of  the  con- 
ductor or  bral\eman  to  use  as  occasion  demanded.  On  this 
state  of  the  evidence  the  defendant  was  refused  instructions, 
in  substance,  that  if  the  defendant  furnished  cars  which  were 
constructed  with  draw  bars  of  a  standard  height,  and  fur- 
nished shims  to  competent  inspectors  and  trainmen  and  used 
reasonable  care  to  keep  the  draw  bars  at  a  reasonable 
height,  it  had  complied  with  its  statutory  duty,  and,  if  the 
lowering  of  the  draw  bar  resulted  from  the  failure  to  use 
the  shims,  that  was  the  negligence  of  a  fellow  servant,  for 
which  the  defendant  was  not  responsible.  In  deciding  the 
questions  thus  raised,  upon  which  the  courts  have  differed,'^ 
we  need  not  enter  into  the  wilderness  of  cases  upon  the  com- 
mon law  duty  of  the  employer  to  use  reasonable  care  to 
furnish  his  employe  reasonably  safe  tools,  machinery  and  ap- 
pliances, or  consider  when  and  how  far  that  duty  may  be 

As   the   law    does   not   define    a  material  whether  the  chains  were 

handhold,  it  is  for  the  jury  to  de-  broken    actually    in    the    links    or 

termine  whether  a  car  is  equipped  were  disconnected.     United  States 

with    proper    handholds    or    with  v.  Terminal  Assn.    (Appendix  G). 

such    suitable    substitutes   as    will  See  United  States  v.  Denver,  etc, 

give   to  the  employees   gi-eater  se-  R.  Co.   163  Fed.  Rep.  519. 

curity  in  the  coupling  or  uncoup-  By    the    use    of    defective    grab 

ling    of    cars.      United    States    v.  iix)ns,  a  brakeman  injured  thereby 

Baltimore,  etc.,  R.   Co.    (Appendix  does  not  assume   the  risk  thereby 

G).      See  Sections  2S2    299.            •  incurred.     Coley  v.  Xorth  Carolina 

Where    the   charge    is   that   the  R.  Co.  128  X.  C.  534;  39  S.  E.  43. 

chains  connecting  the  lock  pins  or  =i  Citing   St.   Louis,   etc,    Ry.   v. 

loch    blocks    -mth    the    uncoupling  Delk,   158   Fed.  Rep.  931. 
lever  were  out  of  repair,  it  is  im- 


456  FEDERAL  SAFETY  APPLIANCE  ACT. 

performed  by  delegating  it  to  suitable  persons  for  whose  de- 
fault the  employer  is  not  responsible  In  the  case  before  us 
the  liability  of  the  defendant  does  not  grow  out  of  the  com- 
mon law"  duty  of  master  and  servant.  The  Congress,  not 
satisfied  with  the  common  law  duty  and  its  resulting  liability, 
has  prescribed  and  defined  the  duty  by  statute.  We  have 
nothing  to  do  but  to  ascertain  and  declare  the  meaning 
of  a  few  simple  words  in  W'hich  the  duty  is  described. 
It  is  enacted  that  'no  cars,  loaded  or  unloaded,  shall 
be  used  in  interstate  traffic  which  do  not  comply  with 
the  standard.'  There  is  no  escape  from  the  meaning 
of  these  words.  Explanation  cannot  clarify  them  and 
ought  not  to  be  employed  to  confuse  them  or  lessen 
their  significance.  The  obvious  purpose  of  the  legis- 
lature was  to  supplant  the  qualified  duty  of  the  common  law 
with  an  absolute  duty  deemed  by  it  more  just.  If  the  rail- 
road does,  in  point  of  fact,  use  cars  which  do  not  comply 
with  the  standard,  it  violates  the  plain  prohibitions  of  the 
law,  and  there  arises  from  that  violation  the  liability  to  make 
compensation  to  one  who  is  injured  by  it.  It  is  urged  that 
this  is  a  harsh  construction.  To  this  we  reply  that,  if  it  be 
the  true  construction,  its  harshness  is  no  concern  of  the 
courts.  They  have  no  responsibility  for  the  justice  or  wis- 
dom of  legislation,  and  no  duty  except  to  enforce  the  law  as 
it  is  written,  unless  it  is  clearly  beyond  the  constitutional 
power  of  the  lawmaking  body.  It  is  said  that  the  liability 
under  the  statute,  as  thus  construed,  imposes  so  great  a  hard- 
ship upon  the  railroads  that  it  ought  not  to  be  supposed  that 
Congress  intended  it.  Certainly  the  statute  ought  not 
to  be  given  an  absurd  or  utterly  unreasonable  inter- 
pretation leading  to  hardship  and  injustice,  if  any  other 
interpretation  is  reasonably  possible.  But  this  argument 
is  a  dangerous  one  and  never  should  be  heeded  when 
the  hardship  would  be  occasioned  and  exceptional.  It 
would  be  better,  it  was  once  said  by  Lord  Eldon, 
to  look  hard-ship  in  the  face  rather  than  break  down 
the  rules  of  tli(!  law.     but  when  applied  to  the  case  at  bar 


REPAIRS.  457 

the  argument  of  hardship  is  plausible  only  when  the 
attention  is  directed  to  the  material  interest  of  the  employer 
to  the  exclusion  of  the  interests  of  the  employe  and  of  the 
public.  Where  the  injury  happens  through  the  absence  of 
a  safe  draw  bar  there  must  be  hardship.  Such  an  injury 
must  be  an  irreparable  misfortune  to  some  one.  If  it  must 
be  borne  entirely  by  him  who  suffers  it,  that  is  a  hardship 
to  him.  If  its  burden  is  transferred,  as  far  as  it  is  capable 
of  transfer,  to  the  employer,  it  is  a  hardship  to  him.  It  is 
quite  conceivable  that  Congress,  contemplating  the  inevitable 
hardship  of  such  injuries,  and  hoping  to  diminish  the 
economic  loss  to  the  community  resulting  from  them,  should 
deem  it  wise  to  impose  their  burdens  upon  those  who  could 
measurably  control  their  causes,  instead  of  upon  those  who 
are  in  the  main  helpless  in  that  regard.  Such  policy  would 
be  intelligible,  and,  to  say  the  least,  not  so  unreasonable  as 
to  require  us  to  doubt  that  it  was  intended  and  to  seek  some 
unnatural  interpretation  of  common  words.  We  see  no 
error  in  this  part  of  the  case. ' '  ~- 

§  302.  Repairing  couplers — Other  act  of  negligence  aiding 
negligence  with  reference  to  couplers. — It  is  the  duty  of  a 
railroad  company  after  it  has  equipped  the  cars  to  keep 
them  in  repair.  It  may  be  negligent  in  this  respect  and 
become  liable  to  the  employe.  "The  statutory  require- 
ments," said  Judge  Shiras,  "with  respect  to  equipping  cars 
with  automatic  couplers  was  enacted  in  order  to  protect  rail- 
way employes,  as  far  as  possible,  from  the  risks  incurring 
when  engaged  in  coupling  and  uncoupling  cars.  If  a  rail- 
way uses  in  its  business  cars  which  do  not  conform  to  the 
statutory  requirements,  either  because  they  never  were 
equipped  with  automatic  couplers,  or  because  the  company, 
through  negligence,  has  permitted  the  coupler,  originally 
sufficient,  to  become  worn  out  and  inoperative,  then  the  com- 

=-St.  Louis,  etc.,  Ry.  Co.  v.  Tay- 
lor, 210  U.  S.  281;"  28  Sup.  Ct. 
Rep.  616;   52  L.  Ed.  1061. 


458  FEDERAL  SAFETY  APPLIANCE  ACT. 

pany  is  certainly  not  performing  the  duty  and  obligations 
imposed  upon  it  by  the  statute  and  is,  therefore, 
chargeable  with  negligence  in  thus  using  an  improperly 
equipped  car;  and  the  company  is  bound  to  know 
that  if  it  calls  upon  one  of  its  employes  to  make 
a  coupling  with  a  coupler  so  defective  and  inoperative 
that  it  will  not  couple  by  impact,  and  that  to  make 
the  coupling  the  employe  must  subject  himself  to 
all  risks  and  dangers  that  inhered  in  the  old  and  dangerous 
link-and-pin  method  of  coupling,  it  is  subjecting  such  em- 
ploye to  the  very  risk  and  danger  which  it  is  the  purpose 
of  the  statute  to  protect  him  against,  so  far  as  it  is  reason- 
ably possible.  Subjecting  an  employe  to  risk  life  and  limb 
by  calling  upon  him  to  use  appliances  which  have  become 
defective  and  inoperative  through  the  failure  to  use  proper 
care  on  part  of  the  master  is  certainly  negligence,  which  will 
become  actionable  if  injury  results  therefrom  to  the  em- 
ploye, and  liability  therefor  cannot  be  evaded  by  the  plea 
that  if  the  company  was  thus  guilty  of  actionable  negligence 
in  this  particular  it  cannot  be  held  responsible  therefor  be- 
cause it  was  guilty  of  another  act  of  negligence  which  aided 
in  causing  the  accident. ' '  -^ 

§  303.  Failure  to  equip  train  with  brakes. — It  is  the 
duty  of  a  railroad  company  to  ascertain  at  its  peril  that  a 
train  it  hauls,  whether  its  own  train  or  one  received  from 
another  company,  over  its  line  of  railway,  or  any  part  of  it, 
that  at  least  eighty-five  per  cent  of  the  cars  of  the  train 
are  equipped  with  air  brakes,  and  if  that  percentage  of 
its  trains  be  not  so  ecpiipped,  it  is  liable  for  a  penalty  of 
one  hundred  dollars  because  of  its  hauling  such  train,  the 
penalty  being  for  hauling  the  train  and  not  a  penalty  for 
each  insufficiently  equipped  car.  The  eighty-five  per  cent 
of  the  cars  composing  the  train  must  be  so  equipped  with 
air  brakes  that  they  can  bo  operated  by  the  engineer  of  the 
train,  and  if  upon  the  journey  they  are  reduced  below  that 
percentage,  then  it  is  the  duty  of  the  company  to  immediately 

23  Voc'lkcr  V.  Chicago,  etc.,  Ry.  Co. 
IIG  Fed.  Rep.  8G7,  reversed  129  Fed. 
622;  05  C.  C.  A.  226. 


REPAIRS.  459 

repair  the  defect  or  defects  and  put  the  air  brakes  in 
operative  condition  as  soon  as  the  defects  are  discovered, 
or  can  he  discovered  by  the  exercise  of  reasonable  care,  at 
least,  on  the  part  of  the  agents  and  'servants  of  the  eom- 
pany  charged  Avith  that  duty,  if  the  defects  can  be  so  re- 
paired by  the  means  and  appliances  at  hand  for  that  pur- 
pose when  the  defects  are  discovered.  If  the  means  and 
appliances  are  not  at  hand  to  remedy  the  defects,  the  com- 
pany has  the  right,  without  incurring  the  penalty  of  the  law, 
to  haul  the  defectively  equipped  car  to  the  nearest  point 
on  its  line  where  the  defects  can  be  repaired  and  the  air 
brakes  and  cars  put  in  operative  condition,  but  if  the  de- 
fects exist  at  a  repair  point  or  other  place  where  they  can 
be  repaired,  then  if  the  company  run  its  train  from  that 
place  when  eighty-five  per  cent  of  the  cars  in  the  train  are 
not  equipped  vnth  operative  air  brakes  it  vdll  be  liable  for 
the  penalty  of  one  hundred  dollars  for  so  running  the 
train.^*  In  counting  the  cars  in  a  train  to  be  equipped  with 
air  brakes,  the  engine  and  tender  are  to  be  counted  as  sep- 
arate and  distinct  cars.-^  The  Interstate  Commission  has 
increased  the  number  of  cars  to  be  equipped  in  any  train  to 
eighty-five  per  cent  of  the  entire  number  in  the  train.'^  This 
statute  did  not  prevent  the  use  of  hand  brakes  before  the 

24  United  States  v.  Chicago,  etc.,      locomotive     drawing     such     train." 
R.  Oo.   162  Fed.  Rep.  775.  United  States  v.  Erie  R.  Co.  35  Sup. 

25  United  States  v.  Chesapeake  &      Ct.  621,  reversing  212  Fed.  853;  129 

Ohio  R.   Co.    (Appendix  G).  os7^'i^i'n^n'  f^'^Ln^^^^^  ^^^  ^^^' 

It  must  not  be  forgotten  that  a  '^%'  ^^^  ^-  X'    ,                    .■       ooo 

,  .,          ,            .          ,".         .,,    x,^  ror  hand  brakes,  see  section  283. 

failure  to  equip  a  tram  wi  h  the  ^he    Arkansas    statute,    requiring 

requisite  number  of  air  brakes  is  tj^j-ee  brakemen  for  freight  trains  of 

an  act  of  negligence  that  may  give  more  than  twenty-five  cars,  operated 

a    passenger,    or   even    a    traveler  in  the  state,  is  constitutional.     Chi- 

crossing  the  right  of  way,  a  right  cago,  R.  I.  &  P.  Ry.  Co.  v.  Arkansas, 

of  action.  219  U.  S.  453;  31  Sup.  Ct.  275;  56 

26  Order  of   June  6,   1910.     Ac-  L.  Ed.  290. 

cording  to  this  order   "all   power        .  \  ™^"  coupling  or  uncoupling  the 

brakes  in  cars  in  ever^r  such  train  ^''  ^°'^  °^  ^,  ^'^'''  '?t'T5  «!  ?  '''" 
,  .  ,  •  J.  J  1.       ±1  -i.,        couphng  a  train.      United  States  v. 

which  are  associated  together  with  g^ston  &  M.  Ry.  Co.,  168  Fed.  148. 
the  eighty-five  per  cent,  shall  have  Unless    a    statute    requires    it,    a 

their  brakes  so  used  and  oper-  railroad  company  is  not  bound  to 
ated" — "bj^    the    engineer    of    the       equip  its  cars  with  automatic  or  air 

brakes.     Pinson  v.  Southern  Ry.  Co. 

85  S.  C.  355;  67  S.  E.  464. 


460  FEDERAL  SAFETY  APPLIANCE  ACT. 

Act  of  1910  requiring  them ;  and  evidence  that  under  a 
general  order  of  a  railway  company  brakemen  are  required 
to  set  hand  brakes  on  trains,  was  held  not  sufficient  to 
establish  a  violation  of  the  statute,  there  being  no  claim  or 
evidence  that  the  required  percentage  of  cars  were  not 
equipped  with  power  or  air  brakes.  It  was  also  held  that 
it  could  not  be  a  defense  to  show  that  the  train  had  a 
"sufficient"  number  of  brakes  as  the  first  section  of  the 
Act  of  1893  required,  although  less  than  seventy-five  per 
cent,  after  the  Interstate  Commission,  acting  under  the  Sup- 
plemental Act  of  1903  had  fixed  the  percentage  at  seventy- 
five.  ^^  The  court  then  proceeds  with  the  remaining  question 
as  follows:  ''It  is  averred  in  plaintiff's  statement  of 
claim  that,  while  the  train  had  seventy-five  per  cent  of  its 
cars  used  and  operated  by  the  engineer,  there  were  asso- 
ciated together  in  said  train  with  said  seventy-five  per  cent 
four  additional  train  brake  cars  which  did  not  have  their 
brakes  operated  by  the  engineer.  This  charges  a  breach 
of  the  provisions  of  section  two  of  the  Act  of  March  2,  1903, 
above  quoted.  It  was  admitted  at  the  trial  that  said  four 
cars  were  defective  and  out  of  repair.  It  did  not  appear 
how  long  their  brakes  had  been  unused.  The  testimony 
showed  that  they  had  their  air  'cut  out' — that  is,  cut  off 
in  the  pipes  extending  from  the  main  air  line  of  the  train 
to  the  brakes.  The  air  was  not  interfered  with  in  passing 
through  said  cars  to  other  cars.  It  seems  plain  that  with 
brakes  cut  out  for  defects  they  ceased  to  be  power-braked 
cars  and  became  part  of  the  allowed  percentage  of  hand- 
braked  cars.  The  act  nowhere  imposes  a  penalty  for  using 
an  air-braked  car  Avith  a  cut-out  brake,  as  it  does  for  using 
one  with  a  defective  coupler,  or  one  without  grabirons  or 
handholds.  Again,  the  act  does  not  say  all  power-braked 
cars  in  a  train  shall  have  their  brakes  used  and  operated. 
There  is  a  qualification  which  must  mean  that  only  such 
power-braked    cars    'which     are    associated    together    with 

27  "The  first  section  of  tho  Act  train  without  rorinirinsr  brnkemen 
of  lRn.3  intonds  that  the  cnjrineer  to  use  the  common  hand  brake  for 
should    control    the    speed   of   the      that  purpose." 


REPAIRS. 


461 


said'  seventy-five  per  cent  shall  have  their  brakes  used. 
That  clearly  contemplated  that  there  might  be  some  power- 
braked  cars  not  associated  with  the  seventy-five  per  cent, 
which  need  not  have  their  air  brakes  used  and  operated. 
All  the  cars  in  the  train,  except  the  four  cut-out  cars,  and 
the  caboose,  not  complained  of,  were  associated  together  in 
the  air  brake  operations  by  the  engineer  of  the  locomotive. 
When  the  Interstate  Commerce  Commission  shall,  in  the 
exercise  of  its  powers,  fix  a  minimum  percentage  of  cars  in 
any  train  required  to  be  operated  with  power  or  train 
brakes,  which  must  have  their  brakes  used  and  operated  as 
required  by  the  act,  at  a  minimum  much  greater  than  that 
which  now  is  the  standard,  there  may  be  some  right  to  re- 
cover upon  a  cause  of  action  in  which  the  allegations  and 
proofs  are  similar  to  those  in  the  case  at  bar."^^     In  the 


28  United  States  v.  Baltimore  & 
0.  Ry.  Co.   176  Fed.  114. 

The  railroad  company  is  bound 
to  keep  the  safety  brakes  in  order. 
Sherrer  v.  Banner  Rubber  Co.  227 
Mo.  347;   126  S.  W.  1037. 

In  order  to  recover  for  injuries 
sustained  fiT>m  the  operation  of  a 
train  not  having  air  brakes,  the 
failure  to  equip  it  with  air  brakes 
must  have  been  the  proximate 
cause  of  the  injurv.  Lyon  ^. 
Charleston  &  W.  C.  Ry.  77  S.  C. 
328;    56    S.   E.    18. 

A  freight  train  scheduled  to  run 
regularly  between  points  in  dif- 
ferent states  is  a  single  train 
throughout  such  run  and  at  all 
times  subject  to  the  statute,  al- 
tliough  some  of  the  cars  compo:?- 
ing  it  may  have  been  left  and 
others  taken  on  at  different  sta- 
tions, and  althougli  after  entering 
the  second  state  the  engine,  caboose 
and  train  crew  are  changed. 
United  States  v.  Chicago  Great 
Western  Ry.  Co.  162  Fed.  775. 

"The  statute  does  not  require 
all  cars  which  may  be  equipped 
with  power  brakes  to  be  coupled 
or    associated    together,    but    only 


fifty  [now  eighty-five]  percent,  of  such 
brakes,  but  it  does  require  all  that 
may  have  been  equipped  with  power 
brakes  and  actually  associated  with 
fifty  [now  eighty-five]  per  cent,  to  be 
controlled  by  the  engineer  from  the 
locomotive.  The  statute  contem- 
plates and  allows  that  there  may  be 
cars  in  the  train  equipped  with  air 
brakes  and  not  associated  with  the 
fifty  per  cent,  operated  from  the 
engine.  The  word  'associated,'  as 
here  used,  manifestly  means  the  cars 
immediately  connected  with  the  fifty 
[now  eighty-five]  per  cent,  equipped 
with  power  brakes  and  operated  from 
the  engine;  and  those  associated  cars 
are  also  required  to  be  operated  from 
the  engine.  But  the  terms  of  the 
statute  not  only  fail  to  require  all  cars 
of  the  train  to  be  equipped  with  air 
brakes  to  be  operated  from  the  engine, 
but  impliedly  excludes  such  require- 
ment, by  expressing  the  requirement 
that  the  cars  when  associated  with  the 
minimum  number  of  cars  shall  be  so 
equipped."  Lyon  v.  Charleston  &  W. 
C.  Ry.  Co.  77  S.  C.  328;  56  S.  E.  18. 
In  computing  the  percentage  of  opera- 
tive air  brake  equipment  in  any  given 
train,  the  engine  and  tender  are  to  be 
counted  as  two  cars.  United  States  v. 
Chesapeake  &  Ohio  Ry.  Co.  (unre- 
ported) Dec.  2,  1908. 


462  FEDERAL   SAFETY  APPLIANCE  ACT, 

absence  of  evidence  of  insufficient  air  brake  equipment,  the 
use  of  hand  brakes,  not  to  control  the  speed  of  the  train, 
but  to  insure  the  safety  of  its  movement,  is  not  a  violation 
of  the  statutes.^^  The  requirement  of  efficient  air  brakes 
presupposes  that  such  equipment  shall  be  inspected  at 
terminals.^"  The  first  section  of  the  Act  of  1893  was  framed 
for  the  purpose  of  obviating  the  necessity  of  brakeman 
going  on  top  of  the  cars  to  operate  hand  brakes.  This  is  the 
specific  danger  legislated  against.  This  purpose  stands 
forth  clearly  from  the  language  of  the  act.  The  implication 
is  irresistable  that  Congress  intended  to  make  illegal  the 
requirement  that  brakemen  should  go  on  the  top  of  cars  to 
operate  hand  brakes.  Any  construction  that  such  use  of  the 
hand  brakes  is  not  illegal  defeats  the  evident  and  manifest 
purpose  of  Congress.  It  also  deprives  those  injured  by 
falling  from  cars  when  required  to  operate  hand  brakes  of 
the  advantages  of  the  remedial  provision  of  the  act,  espe- 
cially of  that  provision  abolishing  the  assumption  of  risk. 
The  purpose  of  the  law  was  to  enable  the  speed  of  the  train 
to  be  controlled  solely  and  exclusively  by  the  engineer, 
through  the  use  of  train  or  power  brakes,  and  to  avoid  the 
necessity  of  trainmen  going  on  the  tops  of  the  cars  to 
operate  the  hand  brakes,  and  to  thus  endanger  their  lives. 

§  303a.  Air  brakes  on  transfer  trains  from  one  yard  to 
another — "Train  defined." — In  a  recent  case  the  Supreme 
Court  has  discussed  the  requirements  of  the  act  in  this 
regard  as  applied  to  a  specific  instance.  The  Erie  Railroad 
maintained  railroad  yards,  with  docks  for  ferries  and  floats, 
on  the  west  bank  of  the  Hudson  river,  at  Jersey  City  and 
Weehaken,  where  cars  were  received  from  and  forwarded  to 
various  points  around  New  York  harbor ;  and  it  maintained 
another  yard  at  Bergen — inland  two  miles  from  Jersey  City 
and  three  and  one-half  miles  from  Weehaken — where  cars 
were  received  from  and  forwarded  to  western  points.  The 
Jersey  City  yard  had  60  tracks,  the  Weehaken  80  and  the 

»  Unitf'd  states  v.  Baltimore  &Ohio  '» United  States  v.  Erie  R.  Co.  212 

R.  Co.  170  Fed.  114.  Fed.  853. 


REPAIRS. 


463 


Bergen  115.  Between  the  Bergen  yard  and  the  others  is  a 
high  hill  pierced  by  a  tunnel  almost  a  mile  in  length.  The 
three  yards  were  connected  by  double  tracks  extending 
from  Jersey  City  and  Weehaken  to  the  eastern  portal  of  the 
tunnel,  and  then  going  through  the  tunnel  to  Bergen.  "The 
situation  may  be  illustrated  by  treating  the  three  yards  as 
located  at  the  outer  points  of  the  letter  Y — Weehaken  and 
Jersey  City  at  the  upper  points  and  Bergen  at  the  base — 
and  connected  by  tracks  conforming  to  the  lines  of  that 
letter,  the  tunnel  being  along  part  of  the  lower  line.  The 
connecting  tracks  are  not  used  by  passenger  trains,  but 
are  the  main  tracks  over  which  freight  is  moved  from  and 
to  points  around  New  York  harbor.  Jersey  City,  "Weehaken 
and  Bergen  are  all  stations  at  which  freight,  both  local  and 
interstate,  is  accepted  and  delivered,  and  are  so  shown  in 
defendant's  tariff  schedule.  "While  the  yards  at  these 
places  are  all  used  for  receiving,  storing,  handling  and 
forwarding  cars,  the  work  of  classifying,  distributing  and 
assembling  the  cars  preparatory  to  sending  them  to  their 
ultimate  destinations,  west  and  east,  is  principally  done  in 
the  Bergen  yard.  Most  of  the  regular  westbound  freight 
trains  are  made  up  and  started  in  that  yard,  and  most  of  the 
regular  eastbound  freight  trains  are  stopped  and  broken  up 
there.  Some  regular  trains  carrying  high-class  freight  pass 
Bergen  without  more  than  a  temporary  stop,  but  the  greater 
part  of  the  traffic  is  moved  between  the  yards  at  Jersey  City 
and  Weehaken,  and  the  one  at  Bergen  in  transfer  trains 
which  run  only  between  those  yards  and  one  operated  over 
the  double  tracks  before  described.  These  transfer  trains 
usually  have  about  twenty-five  cars,  do  not  carry  a  caboose, 
are  drawn  and  operated  by  engines  and  crews  specially  en- 
gaged in  that  service,  and  have  flags  and  signal  lights  dif- 
fering somewhat  from  those  on  other  trains,  but  answering 
the  same  purpose.  They  are  not  run  according  to  fixed 
schedules,  but  at  irregular  intervals  under  the  orders  of 
yardmasters  and  according  to  block  signals.  Their  speed 
is  from  7  to  18  miles  an  hour  and  they  move  great  number 


464  FEDERAL   SAFETY  APPLIANCE   ACT. 

of  ears  in  each  direction  every  day.  All  go  through  the 
tunnel,  which  is  admitted  to  be  very  dark,  and  upon  each 
trip  they  pass  over  several  switches  leading  to  other  tracks, 
traverse  part  of  the  same  line  over  which  15  regular  through 
and  local  freight  trains  are  moved  each  day,  and  cross  at 
grade  tracks  which  are  in  daily  use  by  approximately  35 
passenger  trains."  Under  these  facts  the  Supreme  Court 
held  that  statute  requiring  air  brake  equipment  was  appli- 
cable to  these  transfer  trains.  The  court  calls  attention  to 
the  fact  that  the  Act  of  1903  makes  it  unlawful  for  a  rail- 
road company  engaged  in  interstate  commerce  "to  run  any 
train"  in  such  commerce  without  having  a  sufficient  number 
of  cars  so  equipped  with  train  brakes — commonly  spoken  of 
as  air  brakes — so  the  engineer  on  the  locomotive  can 
control  the  speed  of  the  train  "without  requiring  brakeman 
to  use  the  common  hand  brake  for  that  purpose."  The  court 
then  calls  attention  to  the  second  section  which  requires 
cars  to  be  equipped  with  couplers  which  can  be  coupled  and 
uncoupled  automatically  "without  the  necessity  of  men 
going  between  the  ends  of  the  cars,"  and  to  the  fourth 
section  which  forbids  the  use  in  interstate  commerce  of  any 
car  not  provided  with  secure  grabirons  or  handholds  in  the 
ends  and  sides  of  the  car"  for  greater  security  to  men  in 
coupling  and  uncoupling  cars."  The  court  then  proceeds 
as  follows:  "It  will  be  perceived  that  the  air  brake  pro- 
vision deals  with  running  a  train,  while  the  other  require- 
ments relate  to  hauling  or  using  a  car.  In  one  a  train  is  a 
unit  and  in  the  other  a  car.  As  the  context  shows  a  train 
in  the  sense  intended  consists  of  an  engine  and  ears  which 
have  been  assembled  and  coupled  together  for  a  run  or  trip 
along  the  road.  When  a  train  is  thus  made  up  and  is  pro- 
ceeding on  its  journey  it  is  within  the  operation  of  the  air 
brake  provision.  But  it  is  otherwise  with  the  various  move- 
ments in  railroad  yards  whereby  cars  are  assembled  and 
coupled  into  outgoing  trains,  and  whereby  incoming  trains 
which  have  completed  their  runs  are  broken  up.  These  are 
not  train  movements,  but  mere  switching  operations,  and  so 


REPAIRS.  465 

are  not  within  the  air  brake  provision.  The  other  provisions 
calling  for  automatic  couplers  and  grabirons  are  of  broader 
application  and  embrace  switching  operations  as  well  as 
train  movements,  for  both  involve  a  hauling  or  using  of 
ears.-^  "We  are  persuaded  that  the  transfer  trains  moving 
from  Jersey  City  and  Weehakan  to  Bergen  and  vice  versa 
come  within  the  purview  of  the  air  brake  provision.  They 
were  made  up  in  yards  like  other  trains  and  then  proceeded 
to  their  destination  over  main  line  tracks  used  by  other 
freight  trains,  both  through  and  local.  They  were  not  mov- 
ing cars  about  in  a  yard  or  on  tracks  set  apart  for  switching 
operations,  but  were  engaged  in  main  line  transportation, 
and  this  in  circumstances  where  they  had  to  pass  through 
a  dark  tunnel,  over  switches  leading  to  other  tracks,  and 
across  passenger  tracks  whereon  trains  were  frequently 
moving.  Thus  it  is  plain  that  in  common  with  other  trains 
using  the  same  main  line  tracks,  they  were  exposed  to 
hazards  which  made  it  essential  that  appliances  be  at  hand 
for  readily  and  quickly  checking  or  controlling  their  move- 
ments. The  original  act  prescribed  that  these  appliances 
should  consist  of  air  brakes  controlled  by  the  engineer  on 
the  locomotive,  and  the  Act  of  1903  declared  that  this  re- 
quirement should  'be  held  to  apply  to  all  trains.'  "We 
therefore  conclude  and  hold  that  it  embraced  these  transfer 
trains.  "^° 

"^  Citing  Johnson  v.   Southern  R.  Southern   R.    Co.    v.    Crockett,    234 

Co.  196  U.  S.  1;  25  Sup.  Ct.  158;  49  U.  S.  725;  34  Sup.  Ct.  897;  58  L.  Ed. 

L.  Ed.  363;  17  Am.  Neg.  412;  Schlem-  1564;   Minneapohs,   St.   P.   &   S.   S. 

mer  v.  Buffalo,  R.  &  P.  R.  Co.  205  M.  R.  Co.  v.  Popplar,  237  U.  S.  — ; 

U.  S.  1;  27  Sup.  Ct.  407;  51  L.  Ed.  35  Sup.  Ct.  609;  59  L.  Ed.  — . 

681;    Same  case,  220  U.  S.  590;    31  ^o  United    States    v.    Erie    R.    Co. 

Sup.    Ct.    561;   55   L.   Ed.   596;   St.  35  Sup.  Ct.  621,  reversing  212  Fed. 

Louis,  I.  M.  &  S.  R.  Co.  v.  Taylor,  853;  129  C.  C.  A.  307.    See  also  197 

210  U.  S.  281;  28  Sup.  Ct.  616;  52  Fed.    287;    116   C.    C.   A.   649,   and 

L.    Ed.    1061;    21    Am.    Neg.    464;  United    States  v.  Chicago,    B.  &  Q. 

Chicago,  B.  &  Q.  R.  Co.  v.  United  R.  Co.,  35  Sup.  Ct.  634;  affirming  211 

States,  220  U.  S.  559;  31  Sup.  Ct.  612;  Fed.  12;  127  C.  C.  A.  438. 

55  L.  Ed.  582;  Delk  v.  St.  Louis  &  The    court    concludes    as    follows: 

S.  F.  R.  Co.  220  U.  S.  580;  31  Sup.  "Its    applicability    to    this    class    of 

Ct.  617;  55  L.  Ed.  590;  Southern  R.  trains  was  considered  and  sustained 

Co.  V.  United  States,  222  U.  S.  22;  in  Atchison,   T.  &  S.   F.   R.  Co.  v. 

32  Sup.  Ct.  2;  56  L.  Ed.  72;  Chicago  United  States,  117  C.  C.  A.  341;  198 

Junction  R.  Co.  v.  King,  222  U.  S.  Fed.  637;  United  States  v.  Grand 
222;  32  Sup.  Ct.  79;  56  L.  Ed.  173; 


46g  FEDERAL   SAFETY   APPLIANCE   ACT. 

§  303b.  Trains  too  long-  to  be  operated  alone  with  air 
brakes. — The  iutention  of  Congress  is  to  require  the  con- 
trol of  trains,  in  ordinary  line  of  movement,  by  the  train 
brake  prescribed  by  the  statute,  and  to  make  unlawful 
the  use  of  hand  brakes  for  that  purpose;  and  if  a  train  of 
many  cars — say  one  hundred — can  be  operated  only  by 
the  use  of  hand  brakes,  even  at  a  slow  speed,  while  a  train 
of  a  smaller  number  of  cars  can  be  successfully  operated 
with  power  brakes,  then  the  use  of  hand  brakes  on  such 
long  train  is  unlawful.^" 

Trunk  R.  Co.  203  Fed.  775;  United  does  not  render  the  company  liable 

States  V.  Pere  Marquette  R.  Co.  211  to    an    employee    thereby    injured. 

Fed.  220,  and  La  Mere  v.  Railway  Whalley   v.   Philadelphia   &   R.   Ry. 

Transfer    Co.    125    Minn.    159;    145  Co.    (Pa.)    93   Atl.    1016,    citing   the 

N.  W.  1068."  reversed    cases    of    Erie    R.    Co.    v. 

The   Supreme   Court   of   Pennsyl-  United    States,    197    Fed.    287;    116 

vania    has    decided    that    the    air-  C.  C.  A.  649,  and  United  States  v. 

brake   provision   does   not   apply   to  Erie  R.  Co.  212  Fed.  853;  129  C.  C. 

cars  engaged  in  interstate  commerce  A.  307. 

being  shifted  to  make  up  trains,  and  '"  Virginia  Ry.  Co.  V.  United  States, 

hence  a  failure  of  a  railroad  company  223  Fed.  748. 
to  couple   air  brakes  on  such   cars 


CHAPTER  XVIII. 
NEGLIGENT  INJURY. 


SECTION 

304.  Use  of  car  without  automatic 
coupler  is  negligence  Tpcr  se. 

Failure  to  equip  car  a  con- 
tinuing negligence. 

Who  may  bring  actions  to  re- 
cover damages — What  em- 
ployees are  engaged  in  inter- 
state commerce. 

Proximate  cause  of  injury. 

Assumption  of  risk. 

Contributory  negligence  of 
plaintiff. 

Contributory  negligence  does 
not  defeat  the  action. 


305. 
306. 


307. 
308. 
309 

310. 


SECTION 

311.  Two  acts  of  negligence  com- 
bining to  produce  injury. 

State  courts  may  enforce  lia- 
bility for  negligence  incurred 
under  statute. 

Removal  of  case  to  Federal 
court. 

Judicial  notice. 

Pleading. 

Validity  of  section  concerning 
releases    from    liability. 

Statute  of  Limitations. 


312. 


313. 

314. 
315. 
316. 


317. 


§  304.  Use  of  car  without  automatic  couplers  is  neg- 
gence  per  se. — The  use  of  a  car  in  interstate  commerce  with- 
out automatic  couplers  is  negligence  per  se.'^ 

§  305.    Failure  to  equip  car  a  continuing  negligence. — A 

failure  to  properly  equip  a  car  with  automatic  brakes  used 
in  interstate  commerce  is  a  continuing  negligence,  making 
the  railway  company  liable  for  an  injury  to  an  employee 
while  making  a  coupling  in  the  discharge  of  his  duty.- 


^  Winkler  v.  Philadelphia,  etc.,  R. 
Co.  4  Penn.  (Del.)  80;  53  Atl.  Rep. 
90,  affirmed  4  Penn.  (Del.)  387;  56 
Atl.  Rep.  112;  Voelker  v.  Chicago, 
etc.,  Ry.  Co.  116  Fed.  Rep.  867; 
Grand  Trunk  W.  Ry.  Co.  v.  Lindsay, 
201  Fed.  836;  120  C.  C.  A.  166;  St. 
Louis,  I.  M.  &  S.  R.  Co.  Taylor, 
210  U.  S.  281;  28  Sup.  Ct.  616;  52 
L.  Ed.  1061;  Chicago,  B.  &  Q.  R. 
Co.  V.  United  States,  220  U.  S.  559; 
31  Sup.  Ct.  612;  55  L.  Ed.  582;  Camp- 
bell V.  Spokane  &  I.  E.  R.  Co.  188 
Fed.  516;  Shohoney  v.  Quincy,  O. 
&  K.  C.  Ry.  Co.  223  Mo.  649;  122 
S.  W.  1025;  Nashville,  C.  &  St.  L. 


Ry.  Co.  V.  Henry,  158  Ky.  88;  164 
S.  W.  310;  Chicago,  R.  I.  &  P.  R.  Co. 
V.  Brown,  229  U.  S.  317;  33  Sup.  Ct. 
840;  57  L.  Ed.  1204.  See  also  South- 
ern Ry.  Co.  V.  Carson,  194  U.  S.  136. 
2  Fleming  v.  Southern  Ry.  Co.  131 
N.  C.  476;  42  S.  E.  Rep.  905;  Elmore 
v.  Seaboard,  etc.,  Ry.  Co.  132  N.  C. 
865;  44  S.  E.  Rep.  620;  Greenlee  v. 
Southern  Ry.  Co.  122  N.  C.  977; 
30  S.  E.  Rep.  115;  11  Am.  &  Eng.  R. 
Cas.  (N.  S.)  45;  41  L.  R.  A.  399;  65 
Am.  St.  Rep.  734  (no  statute  relied 
upon);  Mason  v.  Railroad  Co.  Ill 
N.  C.  482;  16  S.  E.  Rep.  698;  Whitsell 
v.  Railroad  Co.  120  N.  C.  557;  27 
467 


468  FEDERAL,   SAFETY   APPLIANCE  ACT. 

§  306.  Who  may  bring  action  to  recover  damages — What 
employees  are  engaged  in  interstate  commerce. — It  is  of  im- 
portance to  know  who  may  bring  an  action  to  recover 
damages  occasioned  him  by  the  neglect  of  a  railway  com- 
pany to  properly  equip  its  cars  with  automatic  couplers  and 
maintain  them  in  repair,  and  also  with  other  devices  speci- 
fied by  the  statute.  In  one  case  it  was  said,  though  the 
point  was  not  before  the  court,  "though  the  Safety  Appli- 
ance Law  is  primarily  in  the  interest  of  employees  in  inter- 
state commerce,  its  protection  is  not  limited  to  them,  but 
extends  to  all  persons  who  without  fault  are  injured  in 
person  or  property  by  reason  of  the  railroad's  failure  to 
provide  the  statutory  safeguards."-^  This  is  certainly  true, 
even  as  to  persons  who  are  passengers  or  property  carried 
as  freight ;  but  the  failure  to  equip  the  car  properly,  to 
render  the  railway  company  liable  in  this  respect,  must 
be  the  proximate  cause  of  the  injury.  Thus,  merely  because 
an  employee  is  injured  by  a  collision  of  trains  and  the  cars 
in  the  trains,  or  some  of  them,  were  not  properly  equipped, 
will  not  of  itself  render  the  company  liable.^-  To  recover 
in  such  an  instance  the  liability  must  be  put  upon  other 
grounds.  Of  course,  any  servant  engaged  in  interstate  com- 
merce, or  engaged  upon  a  railroad  that  is  "a  highway  of 
interstate  commerce,"  though  injured  by  intrastate  improp- 
erly equipped  cars  not  even  moving  in  an  interstate  train, 
is  within  the  protection  of  the  statute.  Thus  an  employee 
charged  with  the  duty  of  seeing  to  the  coupling  of  the  cars 
and  of  the  air  brake  pipes  upon  cars  standing  upon  a  switch 
track  to  be  transferred  to  another  car,  was  held  to  be  em- 

S.  E.  Rep.  125;  Troxler  v.  Southern  resorted   to   in   order   to   excuse   the 

Ily.  Co.  124  N.  C.  191;  32  S.  E.  Rep.  company    from    liabihty    occasioned 

')')0;  44  L.  II.  A.  312;  70  Am.  St.  Rep.  by  a  defective  coupler  and  his  negli- 

580;  Montgomery  v.  Carolina  &  N.  gence.    Chicago,  etc.,  R.  Co.  v.  King, 

W.  R.  Co.  1G3  N.  C.  597;  80  S.  E.  163.  1G9  Fed.  Rep.  372  (decided  February 

The   obligation   to   equip   its   cars  3,  1909);  Philadelphia  &  R.  Ry.  Co. 

cannot  be  evaded   by  a.ssigning  the  v.    United   States,    191   Fed.    1;    111 

duty    to    an    employee    of    the    com-  C.  C.  A.  001. 

pany.     Thus,  the  act  of  a  conductor  *'  Atchison,  T.  &  S.  F.  Ry.  Co.  v. 

in  charge  of  a  train  in  deciding  what  United  States,  172  Fed.  194. 
.shall  be  done  with  a  defective  car  is  '--  Campbell    v.   Spokane   &   I.    El. 

the  act  of  the  company;  and  the  nog-  R.  Co.  188  Fed.  51G. 
ligence    of    the    engineer    cannot    be 


NEGLIGENT    INJURY. 


469 


ployed  in  interstate  commerce,  and  could  avail  himself  of 
the  provisions  of  the  Safety  Appliance  Act.-^  So  a  car  re- 
pairer, injured  by  a  car  standing  upon  a  switch,-*  but  not 
an  employee  standing  on  the  foot  board  at  the  front  end 
of  a  switch  engine,  and  caught  between  a  car  that  was 
being  placed  on  a  sidetrack  for  repair,  because  of  the  ab- 
sence of  an  automatic  car  coupler.-"^ 

§  307.  Proximate  cause  of  injury. — In  order  to  enable  an 
employee  to  recover  where  he  has  been  injured  by  a  car  not 
properly  equipped  with  automatic  couplers,  such  improper 
equipment,  or  the  absence  of  an  automatic  coupler,  must 
have  been  the  proximate  cause  of  his  injury ;  and  he  has  the 
burden  to  show  that  such  was  the  fact.^  But  the  failure  to 
equip  a  car  as  the  statute  requires,  by  reason  of  which  an 
employee  is  obliged  to  go  between  cars  where  he  is  injured 
in  the  proximate  cause  of  the  accident,  although  the  cars 
were  forced  together  by  the  negligent  kicking  of  the  other 
cars  against  them/    The  absence  of  a  proper  coupling  must 


"'  Johnson  v.  Great  Northern  Ry. 
Co.  178  Fed.  643. 

2"  Erie  R.  Co.  v.  Russell,  183  Fed. 
722;  106  C.  C.  A.  160. 

This  phase  of  the  question  has  been 
discussed  somewhat  at  length  in  the 
first  part  of  this  work.  See,  also, 
Chicago,  etc.,  R.  Co.  v.  King,  169 
Fed.  372;  Appendix  G. 

As  to  an  employee  loading  railroad 
iron  coming  within  the  Act  of  1908, 
see  Tsmura  v.  Great  Northern  Ry. 
Co.  58  Wash.  316;  108  Pac.  774. 

As  to  a  track  walker  under  that 
act,  see  Colasurdo  v.  Central  R.  of 
New  Jersey,  180  Fed.  832. 

^  St.  Louis  &  S.  F.  R.  Co.  v.  Con- 
erty,  35  Sup.  Ct.  785,  reversing  106 
Ark.  421;  155  S.  W.  93. 

'  Voelker  v.  Chicago,  etc.,  Ry.  Co. 
116  Fed.  Rep.  867  (injury  caused 
while  attempting  to  adjust  a  coupler); 
Crawford  v.  New  York,  etc.,  R.  Co. 
10  Amer.  Neg.  Cas.  166;  Donegan  v. 
Baltimore,  etc.,  R.  Co.  165  Fed.  Rep. 
869;  Chicago,  etc.,  R.  Co.  v.  King, 
169  Fed.  Rep.  372  (decided  February 
3,  1909);  injury  occasioned  while 
trying  to  put  on  a  new  knuckle. 
La  Mere  v.  Railroad  Transfer  Co. 
125  Minn.  159;  145  N.  W.  1068;  St. 
Louis,  I.  M.  &  S.  R.  Co.  v.  McWhirter, 
22,9  U.  S.  265;  33  Sup.  Ct.  858;  57 
L.  Ed.  1179;  Te.vas  &  P.  Ry.  Co.  v. 
Rigsby,  222  Fed.  221. 

The  question  whether  the  defective 
coupler  was  the  proximate  cause  of 
the  plaintiff's  injury  must  be  sub- 
mitted to  the  jury.  Erie  R.  Co.  v. 
Russell,  183  Fed.  722. 


Where  the  defendant  cut  off  the 
pilot  on  an  engine  so  that  it  was  known 
as  a  "stub  pilot"  in  order  to  comply 
with  the  Safety  Appliance  Act  in 
putting  an  automatic  coupler  on  the 
front  end  of  the  locomotive,  and  the 
locomotive  turned  over  and  killed  its 
servant,  it  was  held  that  the  act  did 
not  apply  to  such  an  instance,  al- 
though it  was  claimed  that  it  turned 
over  because  of  the  condition  of  the 
pilot.  Briggs  v.  Chicago  &  N.  W. 
Ry.  Co.  125  Fed.  745. 

*  Voelker  v.  Chicago,  etc.,  Ry.  Co. 
supra;  York  v.  St.  Louis,  I.  M.  &  S. 
Ry.  Co.  86  Ark.  244;  110  S.  W.  803; 
Sprague  v.  Wisconsin  Central  R.  Co. 
104  Minn.  58;  116  N.  W.  104;  Tur- 
rittin  v.  Chicago,  St.  P.,  M.  &  O.  R. 
Co.  95  Minn.  408;  104  N.  W.  225; 
Nashville,  C.  &  St.  L.  Ry.  Co.  v. 
Henry,  158  Ky.  88;  164  S.  W.  310; 
Campbell  v.  Spokane  &  I.  E.  R.  Co. 
188  Fed.  516;  Shohoney  v.  Quincy, 
O.  &  K.  C.  Ry.  Co.  223  Mo.  649;  122 
S.  W.  1025;  Southern  Ry.  Co.  v. 
Carson,  194  U.  S.  136;  24  Sup.  Ct. 
609;  48  L.  Ed.  907;  Greenlee  v.  South- 
ern Ry.  Co.  122  N.  C.  977;  30  S.  E. 
115;  Troxler  v.  Southern  Rv.  Co. 
124  N.  C.  191;  .32  S.  E.  550;  Elmore 
V.  Seaboard  Air  Line  Ry.  Co.  130 
N.  C.  506;  41  S.  E.  786;  Grand  Trunk 
W.  Ry.  Co.  V.  Lindsay,  201  Fed.  836. 

Where  a  coupler  was  defective, 
and  the  plaintiff  went  between  the 
cars  and  attempted  to  pull  the  coup- 
ling pin  by  hand,  but  not  succeeding 


470 


FEDERAL   SAFETY   APPLIANCE  ACT. 


have  beeu  the  cause  of  the  injury  before  a  recovery  can  be 
had  for  a  failure  to  comply  with  the  statute.^  But 
that  the  deceased  employe  was  engaged  in  coupling  cars  at 
the  time  of  his  death,  that  the  cars  were  not  provided  with 
automatic  couplers,  and  that  the  intestate's  death  was  caused 
by  the  old-fashioned  coupler's  slipping  by  one  another,  make 
out  a  prima  facie  case  of  negligence."*     It  should  be  noted 


started  out  when  his  foot  caught  in 
an  unblocked  switch  frog  and  he  was 
injured,  it  was  held  to  be  a  question 
for  the  jury  whether  the  defective 
coupler  was  the  cause  of  the  injury. 
Donegan  v.  B.  &  N.  Y.  Ry.  Co.  165 
Fed.  869;  Nashville,  C.  &  St.  L.  Ry. 
Co.  V.  Henrv,  158  Kv.  88;  164  S.  W. 
310. 

The  statute  does  not  apply  to  an 
employee  injured  in  a  collision. 
Campbell  v.  Spokane  &,  I.  E.  R. 
Co.   188  Fed.  516. 

5  Elmore  v.  Seaboard,  etc.,  Ry. 
Co.  132  K  C.  865;  44  S.  E.  Rep. 
620;  131  N.  C.  569;  42  S.  E.  Rep. 
689;  Greenlee  v.  Southern  Ry.  Co. 
122  K  C.  977;  30  S.  E.  115; 
Troxler  v.  iSouthern  Ry.  Co.  124 
X.  C.  189;  32  S.  E.  550;  Mason 
V.  Richmond  &  D.  R.  Co.  Ill  N.  C. 
482;  16  S.  E.  698;  Elmore  v.  Sea- 
board Air  Line  Ry.  Co.  130  X.  C. 
205;  41  S.  E.  786;  Southern  Ry. 
Co.  V.  Carson,  194  U.  S.  136;  24 
Sup.  Ct.  609 ;  48  L.  Ed.  — .  Xearly 
all  the  cases  now  hold  that  an 
action  by  the  government  to  re- 
cover a  penalty  under  this  statute 
is  a  civil  action.  United  States 
v.  Baltimore,  etc.,  R.  Co.  (Appen- 
dix G)  ;  United  States  v.  Terminal, 
etc.  (Appendix  G,  p.  325)  ;  United 
States  V.  Nevada  Countj^,  etc.,  K. 
Co.  167  Fed.  695  (Appendix  G)  ; 
United  States  v.  Chicago,  etc.,  R. 
Co.    (Appendix  G)  ;   United  States 


V.  Denver,  etc.,  R.  Co.  163  Fed. 
Rep.  519;  United  States  v.  Chesa- 
peake, etc.,  R.  Co.  (Appendix  G)  ; 
United  States  v.  Louisville,  etc., 
R.  Co.  162  Fed.  Rep.  185;  United 
States  V.  Chicago,  etc.,  R.  Co.  162 
Fed.  Rep.  775 ;  United  States  v. 
Lehigh  Valley  R.  Co.  162  Fed.  Rep. 
410;  United  States  v.  Philadelphia, 
etc.,  R.  Co.  162  Fed.  Rep.  403; 
L^nited  States  v.  Pennsylvania  R. 
Co.  162  Fed.  Rep.  408;  United 
States  v.  Philadelphia,  etc.,  R.  Co. 
162  Fed.  Rep.  405;  United  States 
v.  Atlantic  Coast  Line  R.  Co.  (Ap- 
pendix G)  ;  Atlantic  Coast  Line  R. 
Co.  V.  United  States,  168  Fed.  Rep. 
175  (decided  March  1,  1909)  ;  Wa- 
bash Ry.  Co.  V.  United  States,  168 
Fed.  Rep.  1  (decided  February  3, 
1909 )  ;  United  States  v.  Southern 
Ry.  Co.  1.67  Fed.  699,  Appendix  G. 
6  Mobile,  etc.,  R.  Co.  v.  Brom- 
berg,  141  Ala.  258;  37  So.  Rep. 
395.  A  brakeman  was  directed  to 
cut  oft"  the  two  rear  cars  while  the 
train  was  mo\'ing  slowly  and  be- 
fore it  reached  a  certain  switch. 
The  coupler  being  broken,  he  went 
between  the  ciirs  and  attempted  to 
pull  the  pin  by  hand,  but,  not 
succeeding,  started  out  when  his 
foot  was  caught  in  an  unblocked 
switch  frog  and  he  was  injured. 
It  was  held  that  the  question 
whether  the  failure  of  the  defend- 
ant to  haive  the  car  properly 
equipped  was  the  proximate  cavise 


NEGLIGENT    IXJUIiY. 


471 


that  there  is  nothing  in  the  statute  that  limits  the  class  of 
persons  to  whom  the  carrier  shall  be  responsible  for  damages 
that  result  directly  and  immediately  from  a  failure  to  com- 
ply with  its  provisions.*'*  "Though  the  Safety  Appliance 
Law  is  primarily  in  the  interest  of  employees  in  interstate 
commerce,  its  protection  is  not  limited  to  them,  but  extends 
to  all  persons  who  without  fault  are  injured  in  person  or 
property  by  reason  of  the  railroad's  failure  to  provide  the 
statutory  safeguards,"  namely,  grabirons.®^ 

§  308,  Assumption  of  risk. — By  undertaking  to  couple  a 
car  used  in  interstate  commerce  that  has  not  been  provided 
with  such  couplings  as  that  statute  requires,  the  employe 
does  not  assume  the  risk  of  making  the  coupling.  If  not 
equipped  as  the  act  of  Congress  requires,  "the  plaintiff  did 
not  assume  the  risk  therefrom,  even  though  he  continued  in 
the  employment  of  the  company  after  such  unlawful  use  of 


of  the  injury,  so  as  to  render  it 
liable  under  the  Safety  Appliance 
Act  was  one  of  fact  for  the  jury, 
and  that  it  was  error  for  the 
court  to  direct  a  verdict  for  the 
defendant.  Donegan  v.  Baltimore, 
etc.,  R.  Co.  165  Fed.  Eep.  869. 

6*  Chicago,  etc.,  R.  Co.  v.  King, 
169  Fed.  Rep.  372  (decdded  Febru- 
ary 3,  1909). 

"ea  Atchison,  T.  &  S.  F.  Ry.  Co. 
V.  United  States,   172  Fed.  1<94. 

Failure  to  equip  a  train  with 
air  brakes  must  be  the  proximate 
cause  of  his  injury  to  allow  a 
servant  of  the  company  to  recover 
damages  for  such  injury.  Lyon  v. 
Charleston  &  W.  C.  Ry.  77  S.  C. 
928;  56  S.  E.  18. 

Where  an  employee  was  standing 
on  the  running  board  of  a  loco- 
motive, and  the  train,  not  being 
equipped  with  air  brakes,  separated, 
which  it  would  not  have  done  if  it 
had  been  equipped  with  them;  and 


when  the  two  sections  of  the  train 
came  together  he  was  injured  by  their 
impact,  it  was  held  that  the  proximate 
cause  of  the  injury  was  the  failure  to 
equip  the  train  with  air  brakes. 
Blackburn  v.  Cherokee  Lumber  Co. 
152  N.  C.  361;  67  S.  E.  915.  See, 
also,  Nichols  v.  Chesapeake  &  O.  Ry. 
Co.  195  Fed.  913;  115  C.  C.  A.  601. 

Failure  to  equip  an  engine  with  a 
lever  by  which  it  can  be  uncoupled 
without  going  between  the  cars,  even 
though  such  failure  made  it  necessary 
for  the  injured  brakeman  to  ride  upon 
the  running  board  of  such  engine,  is 
not  the  proximate  cause  of  his  injury 
where  the  defective  condition  of  the 
locomotive  and  track  are  independent 
intervening  causes.  Devine  v.  Chi- 
cago &  C.  R.  Co.  266  111.  248;  102 
N.  E.  803. 

In  an  action  for  injuries  to  a  mem- 
ber of  a  switching  crew  thrown  from 
a  cut  of  cars  on  which  he  was  riding 
when  two  of  them  separated,  in  which 
the  complaint  alleged  that  the  auto- 
matic couplers  between  two  such  cars 


472 


FEDERAL    SAFETY   APPLIANCE   ACT. 


the  cars  had  come  to  his  knowledge.  "^    But  the  usual  rules 


were  defective;  that  the  engineer  and 
conductor  negligently  backed  the 
cars  at  a  high  and  dangerous  rate  of 
speed;  and  that  while  doing  so,  with- 
out warning  or  notice  to  the  plaintiff 
that  they  were  going  to  stop  such 
cars,  they  did  stop  them  negligently 
and  with  great  suddenness,  thereby 
causing  the  last  car  by  reason  of  its 
momentum  to  leave  the  car  to  which 
it  was  coupled,  it  is  improper  to 
instruct  the  jury  that  if  the  couplers 
were  in  proper  condition  and  repair, 
to  allow  the  cars  to  be  properly 
coupled,  and  if  it  was  the  plaintiff's 
duty  to  see  that  they  were  properly 
and  securely  coupled  before  giving 
a  signal  to  indicate  that  they  were 
80  coupled,  and  if  he  undertook  to 
perform  that  duty  and  give  such  sig- 
nal, and  if  the  cars  separated  because 
they  were  not  properly  and  securely 
coupled,  the  plaintiff  could  not  re- 
cover, and  that  if  the  coupler  on  the 
car  which  separated  from  the  one  on 
which  plaintiff  was  riding  was  in  a 
condition  to  properly  and  securely 
couple  on  the  other  car  if  plaintiff 
had  properly  and  carefully  attended 
to  his  duties  to  see  that  it  was  coupled, 
and  if  the  cars  would  not  have  sepa- 
rated if  the  coupling  had  been  properly 
made,  plaintiff  could  not  recover; 
because  they  ignore  the  allegations  of 
the  complaint  that  the  negligence 
complained  of  not  only  caused  the 
cars  to  separate,  but  produced  a  sud- 
den and  unusual  separation  of  which 
plaintiff  had  no  notice  or  warning. 
Vandalia  R.  Co.  v.  Holland  (Ind.) 
108  N.  E.  580. 

For  a  doubtful  case  of  kicking  a 
coupler,  see  Morris  v.  St.  Louis,  S. 
W.  Ry.  Co.  (Tex.  Civ.  App.)  158 
S.  W.  1055. 


'Winkler  v.  Philadelphia,  etc.,  Ry. 
Co.  4  Penn.  (Del.)  80;  53  Atl.  Rep. 
90;  affirmed,  4  Penn.  (Del.)  387;  56 
Atl.  Rep.  112;  Chicago,  etc.,  Ry.  Co. 
v.  Voelker,  129  Fed.  Rep.  522;  65  C. 
C.  A.  65;  70  L.  R.  A.  264;  Mobile,  etc., 
R.  Co.  V.  Bromberg,  141  Ala.  258; 
37  So.  Rep.  395;  St.  Louis,  I.  M.  & 
S.  Ry.  Co.  V.  Neal,  71  Ark.  445;  78 
S.  W.  220;  York  v.  St.  Louis,  I.  M.  & 
S.  R.  Co.  86  Ark.  244;  110  S.  W.  803; 
Atlantic  Coast  Line  R.  Co.  v.  United 
States,  168  Fed.  175;  Texas  &  P.  Ry. 
Co.  V.  Swearingen,  122  Fed.  193; 
Norfolk  &  W.  R.  Co.  v.  Hazelrigg, 
170  Fed.  551;  Johnson  v.  Great 
Northern  Ry.  Co.  178  Fed.  643; 
Luken  v.  Lake  Shore  &  M.  S.  Ry. 
Co.  248  111.  377;  94  N.  E.  175  (Illinois 
statute);  St.  Louis  &  S.  F.  R.  Co.  v. 
Delk,  158  Fed.  931;  St.  Louis  Cordage 
Co.  V.  Miller,  126  Fed.  495;  Plummer 
V.  Northern  Pacific  Ry.  Co.  152  Fed. 
206;  United  States  v.  Atlantic  Coast 
Line  R.  Co.  153  Fed.  918;  Coley  v. 
North  Carolina  R.  Co.  129  N.  C. 
422;  40  S.  E.  195;  57  L.  R.  A.  817; 
Denver  &  R.  G.  R.  Co.  v.  Gannon,  40 
Colo.  195;  90  Pac.  853;  St.  Louis  & 
S.  F.  R.  Co.  v.  Delk,  158  Fed.  931; 
86  C.  C.  A.  95;  Schlemmer  v.  Buffalo, 
R.  &  P.  Ry.  Co.  220  U.  S.  590;  31 
Sup.  Ct.  561;  55  L.  Ed.  596;  Chicago 
Junction  Ry.  Co.  v.  King,  169  Fed. 
372;  94  C.  C.  A.  652;  Southern  Pacific 
Co.  v.  Allen  (Tex.  Civ.  App.)  106 
S.  W.  441;  Voelker  v.  Chicago,  M. 
&  St.  P.  Ry.  Co.  116  Fed.  867;  United 
States  V.  Baltimore  &  O.  R.  Co.  170 
Fed.  456;  Greenlee  v.  Southern  Ry. 
Co.  122  N.  C.  977;  30  S.  E.  115;  St. 
Louis,  S.  W.  Ry.  Co.  v.  Anderson 
(Ark.)  173  S.  W.  834;  Galveston, 
H.  &  S.  A.  Ry.  Co.  v.  Kurtz  (Tex. 
Civ.  App.)  147  S.  W.  658;  Thornbro 


negijIGent  injury.  473 

concerning  the  duties  of  a  master  to  supply  safe  places  for 
the  servant  apply ;  and  the  servant  assumes  the  risks  incident 
to  his  employment.  By  soliciting  work  he  represents  that 
he  is  competent  to  perform  the  work  solicited.^  Upon  this 
question  the  Supreme  Court  has  made  the  following  observa- 
tions: "It  is  enacted  by  Section  8  of  the  act  that  any  em- 
ploye, injured  by  any  car  in  use  contrary  to  the  provisions 
of  the  act,  shall  not  be  deemed  to  have  assumed  the  risk 
thereby  occasioned,  although  continuing  in  the  employment 
of  the  carrier  after  the  unlawful  use  had  been  brought  to 
his  knowledge.  An  early,  if  not  the  earliest,  application 
of  the  phrase  'assumption  of  risk'  was  the  establishment  of 
the  exception  to  the  liability  of  a  master  for  the  negligence 
of  his  servant  when  the  person  injured  was  a  fellow  servant 
of  the  negligent  man.  Whether  an  actual  assumption  by 
contract  was  supposed  on  grounds  of  economic  theory,  or  the 
assumption  was  imputed  because  of  a  conception  of  justice 
and  convenience,  does  not  matter  for  the  present  purpose. 
Both  reasons  are  suggested  in  the  well  known  ease  of  Farwell 
V.  Boston  d:  Worcester  R.  R.  Co.^  But,  at  the  present  time, 
the  notion  is  not  confined  to  risks  of  such  negligence.  It  is 
extended,  as  in  this  statute  it  plainly  is  extended,  to  danger- 
ous conditions,  as  of  machinery,  premises,  and  the  like,  which 
the  injured  party  understood  and  appreciated  when  he  sub- 
mitted his  person  to  them.  In  this  class  of  cases  the  risk  is 
said  to  be  assumed  because  a  person  who  freely  and  volun- 
tarily encounters  it  has  only  himself  to  thank  if  harm  comes, 
on  a  general  principle  of  our  law.  Probably  the  modifica- 
tion of  this  general  principle  by  some  judicial  decisions  and 

V.  Kansas  City,  M.  &  0.  Ry.  Co.  91  R.  Co.  v.  Porter,  207  111.  311;  125  C.  C. 

Kan.  684;  139  Pac.  410;  La  Mere  v.  A.  55;  Northern  Pacific  Ry.  Co.  v. 

Railway     Transportation     Co.     125  Maerkl,  198  Fed.  1;  117  C.  C.  A.  237; 

Minn.  526;  145  N.  W.  1068;  Nash-  Grand  Trunk  W.  Ry.  Co.  v.  Lindsay, 

ville,  C.  &  St.  L.  Ry.  v.  Henry,  158  201  Fed.  836,  affirmed  233  U.  S.  42; 

Ky.   88;   164  S.   W.   310;   Nicols  v.  34  Sup.  Ct.  581;  58  L.  Ed.  828. 

Chesapeake  &  O.  R.  Co.  145  Fed.  913;  ^  Winkler  v.  Philadelphia,  4  Penn. 

Grand  Trunk  W.  Ry.  Co.  v.  Lindsay,  (Del.)   80;  53  Atl.   Rep.  90;  Malott 

201  Fed.  836;  Southern  Ry.  Co.  v.  v.  Hood,  201  111.  202;  66  N.  E.  Rep. 

Crockett,  234  U.  S.  725;  34  Sup.  Ct.  247;  99  111.  App.  360. 

897;  58  L.  Ed.  1564;  Illinois  Central  ^  4  Met.  49. 


474  FEDERAL    S.^FETY    APPI.IANCE    ACT. 

by  statutes  like  Section  8  is  due  to  an  opinion  that  men  who 
work  with  their  hands  have  not  always  the  freedom  and 
equality  of  position  assumed  by  the  doctrine  of  laissez  faire 
to  exist.  Assumption  of  risk  in  this  broad  sense  obviously 
shades  into  negligence  as  commonly  understood.  Negligence 
consists  in  conduct  which  common  experience  or  the  special 
knowledge  of  the  actor  shows  to  be  so  likely  to  produce  the 
result  complained  of,  under  the  circumstances  known  to  the 
actor,  that  he  is  held  answerable  for  that  result,  although 
it  was  not  certain,  intended  or  foreseen.  He  is  held  to  as- 
sume the  risk  upon  the  same  ground.^"  Apart  from  the 
notion  of  contract,  rather  shadowy  as  applied  to  this  broad 
form  of  the  latter  conception,  the  practical  difference  of  the 
two  ideas  is  in  the  degree  of  their  proximity  to  the  particu- 
lar harm.  The  preliminary  conduct  of  getting  into  the  dan- 
gerous employment  or  relation  is  said  to  be  accompanied  by 
assumption  of  the  risk.  The  act  more  immediately  leading  to 
a  specific  accident  is  called  negligence.  But  the  difference 
between  the  two  is  one  of  degree  rather  than  of  kind ;  and 
when  a  statute  exonerates  a  servant  from  the  former,  if  at 
the  same  time  it  leaves  the  defense  of  contributory  negli- 
gence still  open  to  the  master,  a  matter  upon  which  we  ex- 
press no  opinion,  then,  unless  great  care  be  taken,  the  serv- 
ant's right  will  be  sacrificed  by  simply  charging  him  with 
assumption  of  risk  under  another  name.  Especially  is  this 
true  in  Pennsylvania,  where  some  cases,  at  least,  seem  to  have 
treated  assumption  of  risk  and  negligence  as  controvertible 
terms."  We  cannot  help  thinking  that  this  has  happened  in 
the  present  case,  as  well  as  that  the  ruling  upon  Schlemmer's 
negligence  was  so  involved  with  and  dependent  upon  errone- 
ous views  of  the  statute  that  if  the  judgment  stood  the  stat- 
ute M'ould  suffer  a  wound.  To  recur  for  a  moment  to  the 
facts,  the  only  ground,  if  any,  on  which  Schlemmer  could 
be  charged  with  negligence  is  that  when  he  Avas  between  the 
tracks  he  was  twice  warned  by  the  yard  conductor  to  keep 

'•Choctaw,  Oklahoma  &  Gulf  R.       Ed.    207;    afTirniing    52    C.    C.    A. 
R.   Co.   V.   McDadp,   191    U.   S.   64,       2(i0;    114  Fed.  Rep.  458. 
08;    24   Sup.   Ct.   Rep.    102;    48   L. 


NEGLIGENT    INJURY.  475 

his  head  down.  It  is  tnie  that  he  had  a  stick,  which  the 
rules  of  the  company  reqnirod  to  be  used  in  coupling:,  but 
it  could  not  have  been  used  in  this  case,  or  at  least  the  con- 
trary could  not  be  and  was  not  assumed  for  the  purpose  of 
directing  a  nonsuit.  It  was  necessary  for  him  to  get  be- 
tween the  rails  and  under  the  shovel  ear  as  he  did,  and  his 
orders  contemplated  that  he  should  do  so.  But  the  opinion 
of  the  trial  judge,  to  which,  as  has  been  seen,  the  Supreme 
Court  refers,  did  not  put  the  decision  on  the  fact  of  warn- 
ing alone.  On  the  contrary,  it  began  with  a  statement  that 
an  employe  takes  the  risk  even  of  unusual  dangers,  if  he  has 
notice  of  them  and  voluntarily  exposes  himself  to  them.  Then 
it  went  on  to  say  that  the  deceased  attempted  to  make  the 
coupling  with  the  full  knowledge  of  the  danger,  and  to 
imply  that  the  defendant  was  guilty  of  no  negligence  in 
using  the  arrangement  which  it  used.  It  then  decided  in 
terms  that  the  shovel  car  was  not  a  car  within  the  meaning 
of  Section  2.  Only  after  these  preliminaries  did  it  say  that, 
were  the  law  otherwise,  the  deceased  was  guilty  of  contribu- 
tory negligence;  leaving  it  somewhat  uncertain  what  the 
negligence  was.  It  seems  to  us  not  extravagant  to  say  that 
the  final  ruling  was  so  implicated  with  the  earlier  errors 
that  on  that  ground  alone  the  judgment  should  not  be  al- 
lowed to  stand.  We  are  clearly  of  opinion  that  Schlemmer'a 
rights  were  in  no  way  impaired  by  his  getting  between  the 
rails  and  attempting  to  couple  the  cars.  So  far  he  was  saved 
by  the  provision  that  he  did  not  assume  the  risk.  The  negli- 
ence,  if  any,  came  later.  We  doubt  if  this  was  the  opinion 
of  the  court  below.  But  suppose  the  nonsuit  has  been  put 
clearly  and  in  terms  on  Schlemmer's  raising  his  head  too 
high  after  he  had  been  warned.  Still  we  could  not  avoid 
dealing  with  the  case,  because  it  still  would  be  our  duty  to 
see  that  his  privilege  against  being  held  to  have  assumed 
the  risk  of  the  situation  should  not  be  impaired  by  holding 
the  same  thing  under  another  name.  If  a  man  not  intent 
on  suicide,  but  desiring  to  live,  is  said  to  be  chargeable  with 

11  Pntterson  v.  IMIIsbTirc  <?;  Con- 
nellsville  R.  P..  Co   70  Pa.  St.  389. 


476  FEDERAL  SAFETY  APPLIANCE  ACT. 

negligence  as  matter  of  law  when  he  miscalculates  the  height 
of  the  car  behind  him  by  an  inch,  while  his  duty  requires 
him,  in  his  crouching  position,  to  direct  a  heavy  draw  bar 
moving  above  him  into  a  small  slot  in  front,  and  this  in  the 
dusk,  at  nearly  nine  of  an  August  evening,  it  is  utterly 
impossible  for  us  to  interpret  this  ruling  as  not,  however 
unconsciously,  introducing  the  notion  that  to  some  extent 
the  man  had  taken  the  risk  of  the  danger  by  being  in  the 
place  at  all.  But  whatever  may  have  been  the  meaning  of 
the  local  courts,  we  are  of  opinion  that  the  possibility  of 
such  a  minute  miscalculation,  under  such  circumstances, 
whatever  it  may  be  called,  was  so  inevitably  and  clearly  at- 
tached to  the  risk  which  Schlemmer  did  not  assume,  that  to 
enforce  the  statute  requires  that  the  judgment  should  be  re- 
versed. ' '  ^-  The  provisions  of  this  statute  cannot,  however, 
be  applied  to  an  instance  of  "kicking"  cars  onto  a  switch.^^ 
A  switchman  engaged  in  handling  a  freight  car  having  a 
defective  coupler,  on  a  track  which  is  principally  used  for 
handling  freight  trains,  although  occasionally  cars  are 
brought  upon  the  track  for  repairs,  does  not  assume  the  risk 
arising  from  the  defect  in  such  coupler,  when  he  is  not  en- 
gaged in  moving  the  car  as  one  in  bad  order  with  a  view  to 
its  isolation  or  repair.^* 

12  Schlemmer  v.  Buffalo,  etc,  R.  116  Fed.  Rep.  867.  This  is  the 
Co.  205  U.  S.  1 ;  28  Sup.  Ct.  Rep.  only  point  upon  whicli  this  ease 
616;  51  L.  Ed.  681;  reversing  207  was  reversed:  on  all  other  points 
Pa.  St.  198;  56  Atl.  Rep.  417.  the  first  decision  is  an  authority. 
This  case  was  again  tried  and  i*  Chicago,  etc.,  R.  Co.  v.  Voel- 
the  plaintiff  defeated.  It  was  af-  ker,  supra.  "It  cannot  be  as- 
firmed  on  appeal.  Srhlemnier  v.  sumod  that  by  the  passage  of  a 
Buffalo,  etc.,  R.  'Co.  222  Pa.  470;  salutary  law'  designed  for  the 
71  Atl.  1053;  and  on  appeal  to  protection  of  those  engaged  in  haz- 
the  Supreme  Court  of  the  United  ardous  occupations,  Congress  in- 
states the  case  was  again  affirmed  tended  to  offer  a  premium  for 
on  the  ground  of  contributory  neg-  carelessness  or  to  grant  immunity 
ligence  in  the  deceased.  Schlem-  from  the  consequences  of  negli- 
mer  v.  Buffalo,  R.  &  P.  Ry.  Co.  gence.  The  reasonable  conclusion 
220  U.  S.  500;  31  Sup.  Ct.  561;  is  that  the  defense  of  contributory 
55  L.  Ed.  596.  negligence  is  as  available  to  a  rail- 
is  Chicago,  etc.,  Ry.  Co.  v.  Voel-  rnad  company  after  as  before  the 
ker,  129  Fed.  Rep.  522;  66  C.  C.  A.  passage  of  the  act  of  'Congress,  al- 
05;    70    L.    R.    A.    264;    revexsing  though   it  has  not  complied  with 


negligi':nt  injury. 


477 


§  309.  Contributory  negligence  of  plaintiff. — While  an 
employee  of  a  railroad  does  not  assume  the  risk  iu  coupling 
a  ear  not  equipped  with  automatic  couplers,  yet  if  he  had 
been  guilty  of  negligence  contributing  to  his  injuries  it  has 
been  held  he  could  not  recover.  If,  in  "using  such  unlaw- 
ful coupler,  the  plaintiff  contributed  to  the  accident  by  his 
own  carelessness,  he  cannot  recover,  notwithstanding  the 
fact  that  the  coupling  was  unlawful.  In  such  a  case  he 
must  take  the  consequence  of  his  own  contributory  negli- 
gence." "It  is  the  duty  of  the  servant,  as  well  as  the 
master,  to  esercise  care  and  prudence  in  all  cases  com- 
mensurate mtli  the  risk  or  danger  of  the  employment. 
Therefore,  if  the  plaintiff  contributed  to  the  accident  by 
his  own  negligence  he  cannot  recover.  "^^  It  is  not  con- 
tributory negligence,  however,  in  the  employee  to  attempt 
to  couple  or  uncouple  a  car  not  equipped  as  the  act  of 
Congress  requires ;  and  he  may  recover  if  he  does  if  his 
injuries  "resulted  from  such  unlawful  use  alone. "^"^  For 
an  employe  to  remain  in  the  railway  company's  service, 
knowing  that  the  cars  had  not  been  equipped  with  auto- 
matic couplers,  is  not  contributory  negligence. ^^  The  em- 
ploye must  use  ordinary  care  to  avoid  an  injury.^^     If  the 


its  requirements."  Denver,  etc., 
R.  Co.  V.  Arrighi,  li29  Fed.  Rep. 
347.  The  Government  is  entitled 
to  recover  the  statutory  penalty 
under  all  circumstances  where  an 
injured  employe  has,  imder  the 
statute,  the  henefit  of  denial  of 
assumption  of  risk.  United  States 
V.  Atlantic,  etc.,  R.  Co.  153  Fed. 
Rep.  918. 

The  Safety  Appliance  Act  would 
be  honored  only  in  their  breach  if 
the  same  facts  that  would  defeat 
the  employee  under  the  common- 
law  rule  of  assumed  risk  can  be 
used  to  defeat  him  under  the  name 
of  contributory  negligence.  Chi- 
cago, etc.,  R.  Co.  v.  King,  168  Fed. 
Rep.  372  (decided  February  3,  1909). 

Working  on  defective  cars  does  not 
constitute  assumption  of  risk.  Chi- 
cago, M.  &  St.  P.  Ry.  Co.  v.  Voelker, 
129  Fed.  522;  65  C.  C.  A.  276. 

Continuing  in  service  after  know- 
ledge of  the  defect  does  not  constitute 
assumption  of  the  risk.  United 
States  V.  Baltimore  &  O.  R.  Co. 
170  Fed.  456;  Greenlee  v.  Southern 
Ry.  Co.  122  N.  C.  977;  30  S.  E.  115. 

"Plaintiff  did  not  assume  the  risk 
caused  by  the  defective  coupler. 
Merely  going  between  the  cars, 
therefore,  was  not  negligence,  if  he 


used  ordinary  care  in  doing  so.'' 
Grand  Trunk  W.  Ry.  Co.  v.  Lindsay, 
201  Fed.  836;  120  C.  C.  A.  166, 
affirmed  233  U.  S.  42;  34  Sup.  Ct.  581; 
58  L.  Ed.  828. 

1*  Winkler  v.  Philadelphia,  etc.,  R. 
Co.  4  Penu.  (Del.)  80;  53  Atl.  Rep. 
90,    affirmed    4    Penn.    (Del.)    387; 
56  Atl.   Rep.   112;   Mobile,   etc.,   R. 
Co.  V.  Bromberg,   141  Ala.  258;  37 
So.  Rep.  395;  Voelker  v.  Chicago,  etc. 
Ry.  Co.  116  Fed.  Rep.  867;  Denver 
etc.,  R.  Co.  V.  Arrighi,  129  Fed.  Rep 
347;  Schlemmer  v.  Buffalo,  R.  &  P 
Ry.  Co.  220  U.  S.  590;  31  Sup.  Ct.  561 
55  L.  Ed.  596,  affirming  222  Pa.  St 
470;    71    Atl.    1053;    Schlemmer    v 
Buffalo,  etc.,  R.   Co.  205  U.  S.   1 
27  Sup.  Ct.  407;  51  L.  Ed.  681,  re 
versing  207  Pa.  St.  198;  56  Atl.  417 
Toledo,  St.  L.  &  W.  R.  Co.  v.  Gor 
don,  177  Fed.  152;  Popplar  v.  Minne- 
apolis, St.  P.  &  S.  S.  M.  Ry.  Co. 
121    Minn.    413;    141    N.    W.    798; 
Nichols   V.   Chesapeake   &    Ohio    R. 
Co.  195  Fed.  913;  115  C.  C.  A.  601. 

'« Winkler  v.  Philadelphia,  etc.,  R. 
Co.  supra. 

"  Elmore  v.  Seaboard,  etc.,  Ry. 
Co.  132  N.  C.  865;  44  S.  E.  Rep. 
620;  131  N.  C.  569;  42  S.  E.  Rep.  989. 

"  Cleveland,  etc.,  Ry.  Co.  v.  Cur- 
tis, 134  111.  App.  565;  [Nashville,  C. 
&  St.  L.  Ry.  Co.  V.  Henry,  158  Ky. 
88;  164  S.  W.  310. 


478 


FEDERAL  SAFETY  APPLIANCE  ACT. 


servant  could  have  coupled  the  cars  more  safely  from  the 
one  side  of  the  ear  than  another,  he  must  do  so,  if  he  could 
have  done  the  work  as  well  by  going  in  on  the  safe  side.^'' 
If  the  rules  of  the  company  require  him  to  use  a  stick  in 
coupling,  he  must  do  so  if  practicable ;  but  if  not  practicable, 
he  need  not  do  so,  as  where  the  coupler  weighed  120  pounds 
and  was  six  feet  long.^°  In  one  case  it  was  said  that  "The 
devolution  of  this  duty  upon  the  carriers  [to  equip  their 
cars  with  automatic  brakes]  necessarily  imposed  upon  their 
servants  the  correlative  duty  of  using  the  equipment  thus 
furnished  to  them,  and  of  refraining  from  going  between 
the  ends  of  the  cars  to  couple  or  uncouple  them  unless  com- 
pelled to  do  so  by  necessity. ' '  ^"^  And  it  was  held  that  if 
the  couplers  were  in  order  the  servant  must  use  them,  and 
if  he  did  not,  and  was  injured  in  coupling  the  cars  equipped 
with  them  he  was  guilty  of  such  contributory  negligence 


19  Mobile,  etc.,  R.  Co.  v.  Brom- 
berg,  141  Ala.  258;  37  So.  Rep. 
395.' 

20  Fleming  v.  Soutliem  Ry.  Oo. 
131  K  C.  476;  42  S.  E.  Rep.  905. 

In  this  case  it  was  also  held 
that  the  employee  oould  recover, 
although  he  was  guilty  of  oon- 
tributoiy  negligence. 

The  plaintift''s  knowledge  of  the 
physical  conditions  cannot  be 
charged  against  him  in  determin- 
ing the  quality  of  his  conduct  in 
going  and  being  between  the  cars 
when  he  was  injured.  Chicago, 
etc.,  R.  Co.  V.  King,  169  Fed.  Rep. 
372    (decided   February   3,    1909). 

There  are  a  number  of  cases  to 
the  same  effect,  which  we  cite. 
Rchlemmer  v.  Buffalo,  R.  &  P.  Ry. 
Co.  220  U.  S.  590;  31  Sup.  €t. 
561;  55  L.  Ed.  596;  affirming  222 
Pa.  470;  71  Atl.  1053;  Suttle  v. 
Choctaw,  0.  &  G.  R.  Co.  144  Fed. 
008 ;  75  C.  C.  A.  470 ;  Union  Pacific 
R.  Co.  V.  Brady,  161  Fed.  719; 
Morris  v.  Duluth,  S.  S.  &  A.  Ry. 


Co.  108  Fed.  717;  Donegan  v. 
Baltimore  &  N.  Y.  R.  Ry.  Co.  165 
Fed.  869 ;  York  v.  St.  Louis,  I.  M. 
&  S.  Ry.  Co.  86  Ark.  244;  110 
S.  W.  808;  Sprague  v.  Wisconsin 
Central  R.  Co.  104  Minn.  58;  116 
N.  W.  104;  Turrettin  v.  Chicago, 
St.  P.,  M.  &  O.  Ry.  Co.  95  :\finn. 
408;  104  N".  W.  225;  St.  Louis, 
I.  M.  &  S.  Ry.  Co.  V.  York,  92  Ark. 
554;  123  S.  W.  376;  Cleveland,  C. 
C.  &  St.  L.  Ry.  Co.  V.  Baker,  9 J 
Fed.  224 ;  Johnson  v.  Great  North- 
ern Ry.  Co.  178  Fed.  643;  Toledo, 
St.  L.  &  \v.  R.  Co.  V.  Gordon,  177 
Fed.  152;  Siegel  v.  N.  Y.  Central 
R.  178  Fed.  873;  Norfolk  &  W. 
R.  Co.  v.  Hazelrigg,  184  Fed,  828; 
Chicago,  R.  I.  &  P.  Ry.  Co.  v. 
Brown,  185  Fed.  80;  Gilbert  v. 
Burlington,  C.  R.  &  K  Ry.  Co. 
128  Fed.  529;  63  C.  C.  A.  27. 

2na  Gilbert  v.  Burlington,  C.  R. 
&  N.  Rv.  Co.  128  Fed.  529;  63  C. 
C.  A.  27.  See  also  Suttle  v.  Choc- 
taw, O.  &  G.  R.  Co.  144  Fed.  668; 
75  C.  C.  A.  470. 


NEGLIGENT   INJURY.  479 

as  prevented  his  recovering  damages  because  of  his  injuries 
received  in  making  the  coupling  of  the  ears  so  equipped. 
And  while  it  is  the  duty  of  a  railway  company  to  equip  its 
cars  so  they  can  be  coupled  from  both  sides  of  them  without 
the  necessity  of  going  between  them,  yet  if  one  side  be  not 
so  equipped  and  the  other  is,  he  must  go  to  the  other  side 
to  make  the  coupling ;  and  he  cannot  be  heard  to  say  it  was 
dangerous  to  cross  the  tracks  between  the  cars  when  the 
engineer  is  subject  to  his  directions  in  moving  the  cars.-*'^ 
In  an  action  by  a  brakeman  to  recover  damages  for  an 
injury  received  while  uncoupling  cars,  one  of  which  was 
being  moved  with  a  defective  coupler,  it  was  held  error 
for  the  court  to  give  a  general  instruction  as  to  the  effect 
of  contributory  negligence  when  the  cars  could  have  been 
uncoupled  from  the  other  side  of  the  train  without  the 
necessity  of  going  between  them  as  the  plaintiff  did.  The 
defendant  asked  that  the  court  charge  the  jury  that  if  they 
''believe  and  find  from  the  evidence  that,  at  the  time  and 
upon  the  occasion  of  receiving  the  injuries  sued  for,  the 
plaintiff  was  himself  negligent,  and  by  his  own  negligence 
contributed  to  the  injuries  sustained  by  him  and  sued  for 
herein,  and  that,  but  for  such  negligence  upon  the  part  of 
the  plaintiff,  if  any  there  was,  such  injury  could  not  have 
happened  to  or  been  sustained  by  him,"  then  they  must 
find  for  the  defendant.  The  court  refused  to  give  this  in- 
struction and  did  not  give  another  covering  it;  and 
this  was  held  erroneous.^""  Upon  a  second  trial  a  judgment 
was  again  given  for  the  plaintiff;  and  this  was  affirmed  on 
appeal,  the  court  holding  the  brakeman  being  inexperi- 
enced and  was  doing  switching  work  in  the  defendant's 
railroad  yards  in  weighing  cars  which  were  required  to  be 

20b  Union  Pacific  R.  Co.  v.  Bra-  Fed.  529;  G3  C.  C.  A.  27;  Suttle 

dy,    161    Fed.    719;    88    C.    C.    A.  v.   Choctaw,    0.   &  G.   R.   Co.   144 

579;  Morris  v.  Duluth,  S.  S.  &  A.  Fed.   668;    75  C.  C.  A  470. 
Rv.  Co.  108  Fed.  747;  47  C.  C.  A.  20c  Norfolk  .io  W.  Ry.  Co.  v.  Ha- 

661;  Norfolk  &  W.  R.  Co.  v.  Hazel-  zelrigg,  ITO  Fed,  551;  95  C.  C.  A. 

rigg,  170  Fed.  551;  Gilbert  v.  Bin-  637. 
lington,   C.   R.   &   N.   R.   Co.    128 


480 


FEDERAL  SAFETY  APPLIANCE  ACT. 


imeoiipled  as  tliey  were  weighed,  and  who,  when  the  lever 
on  a  car  on  the  side  of  train  where  he  was  working  would 
not  uncouple  two  cars  because .  of  a  defect,  went  between 
the  cars  as  he  had  seen  others  do,  and  was  injured,  cannot 
be  held  chargeable  as  a  matter  of  law  with  contributory- 
negligence,  because  he  did  not  go  around  the  train  and  try 
the  lever  on  the  other  side ;  and  whether  or  not  he  was 
chargeable  with  contributory  negligence  in  going  between 
the  cars  to  uncouple  them,  whereby  he  was  injured,  was  a 
question  for  the  jury,  who  might  take  into  consideration 
his  knowledge  and  experience  in  the  work.  The  plaintiff 
testified  that  he  did  not  know  there  was  a  lever  on  the  other 
side  of  the  connecting  car,  as  there  was.-"*^  Where  a  brake- 
man  went  between  the  cars  to  get  to  the  other  side  to  couple 
the  cars  with  a  lever  when  he  could  have  gone  across  the 


sod  Norfolk  &  W.  E.  Co.  v.  Ha- 
zelrigg.  184  Fed.  828.  The  court 
cites  Bhmientlial  v.  Craig,  81  Fed. 
320;  26  C.  C.  A.  427;  George  v. 
Clark,  85  Fed.  -608;  20  C.  C.  A. 
274:  Wheeler  V.  Oak  Harbor  Head 
Lining  &  Hoop  Co.  126  Fed.  348; 
61  C.  C.  A.  250;  and  Michigan 
Headling  &  Hoop  Co.  v.  Wheeler, 
141  Fed.  61;  72  C.  C.  A.  71,  upon 
the  question  of  the  youthfulness 
or  inexperience  of  the  plaintifT. 
The  court  reviewed  the  cases  cit^d 
above  before  a  discussion  of  the 
case  in  hand  was  herein  assumed, 
as  follows:  "In  the  Morri?,  Gilbert 
and  Suttle  cases  it  was  held  that 
the  act  of  the  brakeman  in  going 
between  the  cars  instead  of  using 
the  lever  on  the  opposite  side  was 
negligence  as  matter  of  law.  The 
P.rady  case  is  in  harmony  Avith  the 
other  three  cases.  We  think  the 
case  before  us  is  readily  distin- 
guishable upon  its  facts  from  each 
of  the  four  cases  cited.  In  tlio 
Morris  case  the  injured  employee 
was  the  hear!  brakeman  of  a  crew 
of  employees.     He  stepped  Ixjlweon 


moving  cars  in  the  dark.  The 
lever  on  the  opposite  side  was  in 
working  order.  In  the  Gilbert  case 
the  plaintiff  was  head  brakeman 
of  the  switching  crew,  and  was 
directing  tne  movements  of  the 
train.  He  likewise  stepped  be- 
tween moving  cars.  The  couplers 
on  both  sides  were  in  good  Avork- 
ing  order,  but  the  one  on  his  side 
could  not  be  pulled  because  the 
'slack  was  tight.'  In  the  Suttle 
case  the  lever  on  the  brakeman' 3 
side  was  temporarily  disconnected, 
but  the  one  on  the  other  side  was 
all  right,  and  the  brakeman  covild 
have  reached  and  drawn  the  pin  in 
safety  by  going  on  the  platform  of 
the  caboose.  Instead  of  doing  so, 
he  went  between  moving  cars  in 
the  night-time.  In  the  Brady  case 
plaintiff  was  foreman  of  the  switch- 
ing crew,  and  had  had  twelve 
years'  experience  as  brakeman, 
swiicliman,  and  yardmaster.  He 
knew  it  was  not  uncommon  for  a 
coupling  appliance  to  require  sev- 
eral jerks  of  the  lever  to  uncouple. 
Wliile    he    was    between    the    cars 


NEGLIGENT   INJURY.  481 

caboose  platform;  and  in  going  aei'oss  the  tracks  he 
stumbled,  fell  and  was  run  over  and  killed,  it  was  held  that 
there  could  be  no  recovery  for  his  death.  At  the  time  of 
crossing  the  cars  were  moving  together.-"®  A  coupler  was 
defective,  and  the  plaintiff  went  between  the  cars  and  at- 
tempted to  pull  the  pin  by  hand,  but  not  succeeding,  started 
out  when  his  foot  caught  in  an  unblocked  switch  frog  and 
he  was  injured.  It  was  held  to  be  a  question  for  the  jury 
if  the  defective  coupler  caused  the  injury,  and  if  the  plain- 
tiff were  guilty  of  contributory  negligence.-"^  Wliere  a 
switchman  put  his  hand  between  cars  and  moved  along 
with  them  in  uncoupling,  it  was  held  that  he  was  not  guilty 
of  contributory  negligence,  the  safety  coupling  being  out  of 
order,  though  he  could  have  avoided  the  resultant  injury 
by  waiting  until  the  cars  stopped.  There  were  twelve  cars 
in  a  string,  and  there  was  no  way  practically  open  to  the 
SAvitchman  to  go  around  to  the  opposite  side.  The  operation 
of  uncoupling  was  to  be  done  while  the  train  was  moving, 
and  there  was  no  opportunity  to  stop  the  train.  When  he 
received  his  injuries  he  could  not  have  reached  the  pin 
lifting  the  rod  on  the  adjacent  car,  projecting  on  the  oppo- 
site  side   of   the    train,    as   readily   as   he    could    reach   the 

after  dark,  the  cars  were  moved  side,  or  himself  have  gone  around 
through  the  negligence  of  a  fellow  and  operated  that  lever  or  other- 
servant."  wise   acted.      If   you   believe    from 

The  court  approved  this  instruc-  the   evidence   that   a   brakeman   of 

tion:  ordinary  care  and  prudence,  under 

"The  question,  then,   is  whether  like  circumstances,  would  have  ap- 

or  not  a  brakeman  of  ordinary  care  preciated  that   danger,   and  would 

and  prudence,  with  such  experience  not    have    srone    in    bptween    tliose 

as  plaintiff  in  this  case  had,  and  ears,  but  would  have  called  aero.;? 

with  such  knowledge  of  railroading  to   the    conductor,    or   would   have 

as  he  had,  and  under  existing  con-  gone  around  and  pulled  the  other 

ditions — i.    e.,   under   like    circum-  lever   himself,    or    acted   othermse 

stances  —  would     or     not     have  than  going  between  the  cars,  there 

appreciateu  the  danger  of  going  can  be  no  recoverv  in  this  case." 
in   between    those   cars,    and    have  -oe  Suttle  v.  Choctaw,  0.  &  G.  R. 

refrained    from   going   in   between  Co.    144    Fed.    GG8;    75    C.    C.    A, 

them,    and,    instead    of    doing    so,  470. 

would  have  called  over  to  the  con-  ^of  Donegan  v.  Baltimore  &  N.  Y. 

ductor  to  operate  the  lever  on  his  E.  Co.  165  Fed.  869. 


482  FEDERAL  SAFETY  APPLIANCE  ACT. 

pin  itself.  Tlie  court  considered  that  he  was  compelled  to 
do  as  he  did  "by  necessity"  within  the  meaning  of  the 
quotation  above  set  forth. -"^  "In  our  judgment,  'the  neces- 
sity' existed  in  the  case  under  consideration;  for  in  large 
yards,  where  safety  appliances  refuse  to  work,  to  let  the 
cars  go  uncoupled  under  the  circumstances  disclosed  here, 
might  result  in  blocking  the  operation  of  the  whole  road. 
There  is  nothing  in  the  facts  before  us  that  show  that  the 
defendant  in  error  [the  plaintiff]  might,  without  violating 
his  duty  or  doing  injury  to  the  road,  have  stopped  the 
operation  of  the  train  until  he  could  have  gone  around  on 
the  other  side. 

"Nor  can  we  believe  that  the  interpretation  put  upon  this 
Act,  in  the  part  just  quoted  from  the  opinion  in  Gilbert  v. 

B.  C.  B.  &  N.  R.  Co.,  is  the  one  intended  by  Congress.  To 
our  minds,  the  act  was  intended,  not  to  increase  the  diffi- 
culty of  getting  compensation  for  injuries  sustained,  but  to 
decrease  the  number  of  cases  in  which  injuries  would 
happen.  It  abolishes,  in  terms,  assumption  of  risk.  And 
where  there  exists  a  practical  necessity,  such  as  confronted 
this  switchman,  to  uncouple  the  cars  by  some  means  other 
that  the  defective  lever,  what  is  done  is  assumption  of  risk. 
Putting  his  arm  between  the  cars,  under  such  circumstances, 
and  traveling  with  them,  is  not  per  se  contril)utory  negli- 
gence. If  there  be  contributory  negligeuce  at  all,  it  depends, 
not  upon  his  assuming  the  risk  under  the  circumstances  dis- 
closed, but  upon  the  degree  of  care  with  which  he  acts 
while  in  the  performance  of  the  work  under  the  assumed 
risk;  and  that  question,  we  think,  all  things  considered, 
was  fairly  submitted  to  the  jury  in  the  instruction  of  the 
court.  "="^ 

Where  a  brakeman  was  ordered  to  make  a  coupling  with 
a  coupler  that  had  been  out  of  order  for  five  months,  to  the 
railroad    company's    knowledge,    and    he    was    injured    in 

soKCilhftrt  V.   151111  infrton,   f.   Ji.  ^m,  ciiicapo,   R.  T.  &  P.   Ry.   Co, 

&    N.    Ry.   Co.    128    Fed.    529;    (>3      v.  J5iovvn,  185  Fed.  80. 

C.  C.  A.  27;  Grand  Trunk  W.  Rv. 
Co.  V.  LindKay,  201  Fcul.  S;3«;  120 
C.  C.  A.  12(5,  affirrnod  2;]3  U.  S.  42; 
34  Sup.  Ct.  581;  68  L.  Ed.  828. 


NEGLIGENT   INJURY.  483 

obeying  the  order,  it  was  held  that  he  was  not  guilty  of 
contributory  negligence.-  An  experienced  brakeman, 
having  been  in  service  fifteen  or  sixteen  years,  undertook 
to  couple  a  shovel  car,  having  an  iron  drawbar,  weighing 
about  eighty  pounds,  and  protruding  beyond  the  end  of  the 
shovel  car.  The  end  of  this  drawbar  had  a  small  opening, 
or  eye,  into  which  an  iron  pin  was  to  be  fitted  when  the 
coupling  was  made;  this  was  to  be  affected  by  placing  the 
end  of  the  drawbar  into  the  slot  of  the  automatic  coupler 
with  which  the  caboose  was  equipped.  Owing  to  the  differ- 
ence in  height,  tlie  end  of  the  shovel  car  would  pass  over 
the  automatic  coupler  on  the  caboose  in  case  of  an  unsuc- 
cessful attempt  to  make  the  coupling;  and  the  end  of  the 
shovel  car  would  come  in  contact  with  the  end  of  the 
caboose.  At  the  time  when  he  undertook  to  couple  the  train 
with  the  shovel  car  to  the  end  of  the  caboose,  he  went  under 
the  end  of  the  shovel  car,  and  attempted  to  raise  the  iron 
bar  so  as  to  cause  it  to  fit  into  the  slot  of  the  automatic 
coupler  on  the  caboose.  While  so  doing,  his  head  was 
caught  between  the  ends  of  the  shovel  ear  and  the  caboose, 
and  he  was  almost  instantly  killed.  The  situation  was 
plainly  observable.  It  was  held  that  there  could  be  no 
recovery  for  his  death.     He  was  twice  expressly  cautioned 


^  Elmore  v.  Seaboard  Air  Line  Ry.  negligence  to  go  between  the  cars  to 

Co.  130  N.  C.  506;  41  S.  E.  786.  couple  them.     Sprague  v.  Wisconsin 

^Schlemmer  v.   Buffalo,   R.   &   P.  Central   R.   Co.   104  Minn.   58;   116 

Ry.  Co.  222  Pa.  470;  71  Atl.  1053;  N.   W.    104;   Turrettin    v.    Chicago, 

affirmed  220  U.  S.  590;  31  Sup.  Ct.  St.  P.  M.  &  O.  R.  Co.  95  Minn.  408 

561;  55  L.  Ed.  — .     A  like  holding  104  N.  W.  225;  York  v.  St.  Louis,  I 

was  had  on  the  first  appeal,  207  Pa.  M.  &  S.  Ry.  Co.  86  Ark.  244;  110  S 

198;  56  Atl.  417,  but  the  case  was  W.  803;  Smith  v.  Atlantic  Coast  Line 

reversed   by   the   United   States   Su-  R.  Co.  210  Fed.  761;  127  C.  C.  A.  311 

preme  Court,  205  U.S.  1;  27  Sup.  Ct.  Grand   Trunk   Western    Ry.   Co.    v 

407;  51  L.  Ed.  681.  Lindsay,  201  Fed.  836;  120  C.  C.  A 

For  a  case  holding  it  contributory  166,  affirmed  233  U.  S.  42;  34  Sup.  Ct 

negligence  not  to  go  to  the  other  side  581;  58  L.  Ed.  828. 

of  a  car  where  a  lever  could  be  worked.  In  the  absence  of  grab  irons  it  was 

see  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  held  in  an  early  case  that  the  jury 

York,  92  Ark.  554;  123  S.  W.  376.  was  to  consider  whether  or  not  the 

If  the  coupling  be  out  of  working  plaintiff   was   guilty   of   contributory 

order,    then    it    is   not    contributory  negligence   in   attempting   to   couple 


484  FEDERAL,   SAFETY  APPLIANCE  ACT. 

at  the  time  as  to  the  danger  of  doing  as  he  did.^  But  where 
dust  from  ballast  on  the  track  filled  the  pin  hole  of  the 
coupler  and  packed  the  coupling  so  it  could  not  be  removed 
by  the  automatic  coupler,  and  the  plaintiff's  superior  or- 
dered him  to  go  between  the  cars  and  uncouple  them,  it 
was  held  that  he  was  not  guilty  of  contributory  negligence.* 
If  the  coupler  is  defective  to  the  extent  that  it  falls  within 
the  condemnation  of  the  statute,  and  the  defect  was  the 
proximate  cause  of  the  plaintiff's  injury,  then  his  contribu- 
tory negligence  will  not  be  considered  f  unless  such  contribu- 
tory negligence  was  the  sole  cause  of  the  injury.**  A  failure 
of  the  plaintiff  to  report  the  defect,  to  the  railroad  company, 
as  its  rules  required,  is  no  defense  on  its  part.'^  "But  there 
is  nothing  in  the  statute  absolving  the  employee  froni  the 
duty  of  using  ordinary  care  to  protect  himself  from  injury 
in  the  use  of  the  car  with  the  appliance  actually  furnished. 
In  other  words,  notwithstanding  the  company  failed  to 
comply  with  the  statute,  the  employee  was  not  for  that  rea- 
son absolved  from  the  duty  of  using  ordinary  care  for  his 
own  protection  under  the  circumstances  as  they  existed. 
This  has  been  the  holding  of  the  courts  in  construing  stat- 
utes enacted  to  promote  the  safety  of  employees."^  The 
question  of  contributory  negligence  is  ordinarily  one  for  the 
jury.  In  one  case  it  was  said:  "It  was  peculiarly  within 
the  province  of  the  jury  to  look  into  all  the  facts  and  circum- 
stances and  determine  whether  the  plaintiff  used  the  ordi- 
nary care  required  of  him  in  carrj'ing  out  the  order  which 
was  given  him."^  The  question  of  proximate  cause  ordinarily 

cars.    Cleveland,  C.  C.  &  St.  L.  Ry.  « Schlemmer  v.   Buffalo,   R.   &   P. 

Co.  V.  Baker,  91  Fed.  224.  Ry.  Co.  220  U.  S.  590;  31  Sup.  Ct. 

Uohnston   v.   Chicago   G.   W.   R.  561;  55  L.  Ed.  596,  affirming  222  Pa. 

Co.  (Mo.  App.)  164  S.  W.  260.  St.  470;  71  Atl.  1053;  Denver  &  R. 

'  St.  Louis  S.  W.  R.  Co.  v.  Anderson  G.  R.  Co.  v.  Arrighi,  129  Fed.  347; 

(Ark.)  173  S.  W.  834.  63  C.  C.  A.  649;  Toledo,  St.  L.  &  W. 

"Whenever    injury    or    death     is  R.  Co.  v.  Gordon,  177  Fed.  152;  100 

caused  by  a  failure  to  comply  with  C.  C.  A.  572;  Popplar  v.  Minneapolis 

the  demands  of  the  safety  appliance  St.  P.  &  S.  S.  Ry.  Co.  121  Minn.  413; 

laws,  there  is  absolutely  no  defense  141  S.  W.  798. 

that  can  be  presented  by  the  railroad  "  Donegan  v.   Baltimore  &  N.  Y. 

company."      San    Antonio   &   A.    P.  Ry.  Co.  165  Fed.  869;  91  C.  C.  A. 

Ry.  Co.  v.  Wagner  (Tex.  Civ.  App.)  5.55;  Johnson  v.  Great  Northern  Ry. 

166  S.  W.  24.  Co.  178  Fed.  643;  Chicago,  R.  I.  &  P. 

•Smith  v.  Atlantic  Coast  Line  R.  Ry.  Co.  v.  Brown,  1S5  Fed.  80;  107 

Co.  210  Fed.  761;  127  C.  C.  A.  311.  C.  C.  A.  300;  Nichols  v.  Chesapeake 

^  Na.shville.  C.  A-  St.  L.  Py.  Co.  v.  &  O.  Ry.  Co.  195  Fed.  913;  115  C.  C. 

Henry,   158  Ky.  88;   164  S.  W.  310.  A.  601;  Grand  Trunk  W.  Ky.  Co.  v. 


NEGLIGENT    INJURY.  4g5 

is  one  for  the  jury;^°  unless  the  facts  are  undisputed  and 
are  such  that  all  reasonable  minds  must  reach  the  same  con- 
clusion.^^ 

§  310.  Contributory  negligence  does  not  defeat  the 
action. — The  questions  of  contributory  negligence  discussed 
in  the  preceding  section  are  not  of  as  much  importance  as 
they  may  seem  when  the  action  is  brought  by  an  employee 
injured  by  a  defective  coupling  or  grabiron  upon  an  inter- 
state train  or  car,  or  car  moving  over  or  used  on  a  railroad 
used  as  a  highway  of  interstate  commerce  as  would  at  first 
blush  seem,  in  view  of  the  Employers'  Liability  Act  of 
1908.  It  is  only  an  interstate  railroad  company,  or  one  en- 
gaging in  interstate  traffic,  that  is  required  to  equip  its 
cars  with  automatic  brakes  and  couplers  and  handgrabs 
or  handholds;  and  consequently  usually  all  employees  en- 
gaged on  such  cars  are  within  the  provision  of  this  Act  of 
1908.  In  none  of  the  cases  cited  in  the  previous  section  is 
this  exact  question  discussed,  or  even,  we  believe,  alluded 
to.  By  the  Act  of  1908  in  all  actions  brought  against  a 
common  carrier  by  railroad  for  injuries  to  an  employee 
occasioned  while  engaged  in  commerce  between  any  of  the 
several  states  or  territories ;  or  between  the  District  of 
Columbia,  or  any  of  the  states  or  territories  and  any  foreign 
nation  or  nations,  the  fact  that  he  may  have  been  guilty  of 
contributory  negligence  will  not  bar  a  recovery,  but  his  dam- 
ages will  be  diminished  by  the  jury  in  proportion  to  the 
amount  of  negligence  attributable  to  him.  If  the  violation 
by  the  common  carrier  of  any  statute  enacted  for  the  safety 
of  employees  contributed  to  an  employee's  injury  or  death, 
then  he  cannot  be  deemed  guilty  of  contributory  neg- 
ligence.^" As  we  have  said,  this  statute  is  applicable  to  an 
employee  injured  by  a  defective  coupler  on  an  interstate 
car  or  a  car  used  on  a  highway  of  interstate  commerce ;  and 

Poole,  93  N.  E.  26;  La  Mere  v.  Ry.  Russell,   183  Fed.  722;  Thornbro  v. 

Trans.  Co.   125  Minn.   159;   145  N.  Kansas  Citv,   M.  &  O.   Ry.  Co.  91 

W.  1068;  Grand  Trunk  Western  Rv.  Kan.  684;  139  Pac.  410. 

Co.   V.   Lindsay,  201   Fed.   836;   120  "  Devine  v.  Chicago  &  C.  R.  Co. 

C.  C.  A.  166,  affirmed  233  U.  S.  42;  266  111.  248;  102  N.  E.  803. 

34  Sup.  Ct.  581 ;  58  L.  Ed.  828.  •-  This     statute     is     discussed     at 

'*>  Donegan  v.  Baltimore  &  N.  Y.  length  in  the  first  part  of  this  work. 
R.  Co.  165  Fed.  869;  Erie  R.  Co.  v. 


486  FEDERAL   SAFETY   APPLIANCE  ACT. 

sven  though  he  has  been  guilty  of  contributory  negligence, 
that  will  not  defeat  his  cause  of  action.  This  question  has 
been  decided  in  the  affirmative.  In  that  case  the  coupler 
on  a  car  being  used  in  interstate  commerce  was  so  defective 
that  it  Avould  not  couple  automatically  by  impact,  and  an 
employee  in  the  performance  of  his  duty,  was  caught  be- 
tween the  cars  and  injured,  the  violation  of  the  statute  by 
the  company  being  a  contributory  cause  of  the  injury,  which 
rendered  it  liable  tlierefor.  It  was  held  that  the  question  of 
assumption  of  risk  and  contributory  negligence  was  imma- 
terial. This  employee  was  charged  with  the  duty  to  see  that 
the  coupling  of  the  cars  and  of  the  air  brake  pipes  upon 
cars  standing  upon  a  switch  track  to  be  transferred  to  an- 
other company.  Some  of  these  cars  were  being  used  in  inter- 
state commerce.  It  was  held  that  he  was  employed  in 
interstate  commerce,  and  was  Avithin  the  provision  of  the 
Act  of  1908.-°'  Inasmuch  as  negligence  on  the  part  of  the 
plaintiff  reduces  the  amount  of  damages  he  would  other- 
wise recover,  a  discussion  of  those  cases  in  which  contributory 
negligence  has  been  involved  in  safety  appliance  in- 
juries becomes  important  in  order  to  measure  the  amount  of 
recovery. -°"^ 

§  311.  Two  acts  of  negligence  combining  to  produce  in- 
jury.—Two  acts  of  negligence  may  so  combine  as  to  pro- 
duce an  injury,  one  of  which  is  a  violation  of  the  Safety 
Appliance  Act  with  reference  to  automatic  couplers.  In  such 
an  instance  the  company  will  be  liable,  although  but  for  the 
combination  the  injury  would  not  have  been  inflicted.-^  And 
a  violation  of  the  Safety  Appliance  Act  may  always  be  con- 
sidered by  the  jury  in  determining  whether  or  not  the  de- 
fendant company  was  negligent,  so  far  as  its  duty  was  con- 

201  Johnson    v.    Grent    Xorthorn  nte  of   1908   applies  to   an   injury 

lly.    Co.    178   Fed.   G43.  occasioned  by   a   defective   coupler 

20m  There   is  the  merest  intima-  on  an  interstate  railroad. 
tion  in  fiehlemmer  v.  Buffalo,  etc.,  21  Voelker   v.    Chicago,   etc.,   Ry 

Ry.  Co.  220  U.  R.  5fl0;  .31  Wup.  Ct.  Co.  IIG  Fed.  Hep.  8G7. 
5G1 ;  55  L.  Ed.  o'Jd,  that  tiie  stat- 


NEGLIGENT    INJURY. 


487 


cerned  towards  the  employe  who  was  injured  while  coupling 
cars  not  equipped  with  automatic  brakes  as  the  statute  re- 
quired.-^ 

§  312.  State  courts  may  enforce  liability  for  negligence  in- 
curred under  statute.— The  state  courts  have  the  power  to 
entertain  suits  to  recover  damages  received  by  reason  of  a 
violation  of  the  Safety  Appliance  Statute.^^  A  number  of 
cases  have  reached  the  highest  courts  of  several  states  which 
had  been  brought  upon  the  federal  statute.^*  And  at  least 
two  of  these  have  been  carried  to  the  Supreme  Court  of  the 
United  States,  and  either  reyersed  or  affirmed;  and  the  ques- 
tion of  the  state  court's  jurisdiction  never  raised.  And  it 
has  been  expressly  decided  that  this  federal  statute  is  bind- 
ing upon  a  state  court  and  must  be  applied  when  the  plead- 
ings and  facts  proven  show  the  case  falls  within  its 
provisions.-^ 


22  Crawford  v.  New  York,  etc., 
E.  Co.  10  Am.  &  Eng.  Neg.  Ciis. 
166;  see  Chicago,  etc.,  E,.  Co.  v. 
King,  169  Fed.  Rep,  372  (decided 
February  3,   1909). 

23  St.  Louis,  etc.,  R.  Oo.  v.  Tay- 
lor, 210  U.  S.  281;  28  Sup.  Ct. 
Rep.  616;  Sclilenimer  v.  Buffalo, 
etc.,  Ry.  Co.  205  U.  S.  1 ;  27  Sup. 
Ct.  Rep.  407;  51  L.  Ed.  681;  re- 
versing 207  Pa.  St.  19i8;  56  Atl. 
Rep.  417;  Southern  Pac.  R.  Co.  v. 
Allen,  48  Tex.  Civ.  App.  66;  106 
S.  W.  Rep.  441;  Mobile,  etc.,  R.  Co. 
V.  Bromberg,  141  Ala.  258;  37  So. 
Rep.  395;  Crawford  v.  New  Yore, 
etc.,  R.  Co.  10  Am.  &  Eng.  Neg. 
Cas.  166. 

24  Missouri  Pac.  Ry.  Co.  v. 
Brinklemeier,  77  Kan.  14;  93  Pac. 
Rep.  621;  Southeni  Pac.  R.  Co.  v. 
Allen,  48  Tex.  Civ.  App.  66;  106  6. 
W.  Rep.  441 ;  Chicago,  etc.,  Ry. 
Co.  v.  State,  86  Ark.  412;  111  S. 
W.  Rep.  456;  Cleveland,  etc..  Ry. 
Co.   V.   Curtis,   134  111.  App.   565; 


Nicholas  v.  Chesapeake,  etc.,  Ry. 
Co.  127  Ky.  310;  105  S.  W.  Rep. 
4.81;  32  ivy.  L.  Rep.  270.  See 
Harden  v.  North  Carolina  E.  Co. 
129  N.  €.  354;  40  S.  E.  Rep.  184; 

55  L.  R.  A.  7i84. 

25  Mobile,  etc.,  R.  Co.  v.  Brom- 
berg, 141  Ala.  258;  37  So.  Rep. 
305;  Kansas  City,  etc.,  R.  Co.  v. 
Flippo,  138  Ala.  487;  35  So.  Rep. 
457 ;  York  v.  iSt.  Louis,  I.  M.  &  S. 
Ry.  Co.  86  Ark.  244;  110  S.  W. 
803 ;  Sprague  v.  Wisconsin  Central 
R.  Co.  104  Minn.  58;  116  N.  W. 
104;  Turrettin  v.  Chicago,  St.  P., 
M.  &  0.  R.  Co.  95  Minn.  408; 
104  N.  W.  225;  St.  Louis.  I.  M.  .% 
S.  Rv.  Co.  V.  York,  92  Ark.  554; 
123  S.  W.  376;  Elmore  v.  Seaboard 
Air  Line  Ry.  Co.  130  N.  C.  205 
41  S.  E.  786;  'Schlemmer  v.  Buf 
falo,   etc.,    Ry.    Co.    207   Pa.    198 

56  Atl.  417;  reversed  205  U.  S 
1;  27  Sup.  Ct.  407;  51  L.  Ed.  681 
Schlemmer  v.  Buffalo,  etc.,  Rv.  Co 
222    Pa.    470;    71    Atl.    1053;    af 


^gg  FEDERAL    SAFETY    APPLIANCE    ACT. 

§  313.  Removal  of  case  to  Federal  court. — As  the  injured 
employee,  M^hen  he  bases  his  cause  of  action  upon  the  terms 
of  the  Federal  statute,  can  bring  his  suit  in  the  Federal 
court,  the  defendant  can  insist,  when  the  suit  is  brought  on 
the  statute  in  a  state  court,  if  the  amount  demanded  is  three 
thousand  dollars  or  more,  that  it  be  removed  into  the 
proper  federal  court.  One  case  on  this  question  was  deter- 
mined in  one  of  the  circuit  courts.  The  court  assumed  the 
statute  was  valid,  and  then  proceeded  to  discuss  its  remov- 
ability into  the  federal  court:  "Does  it  follow  that  the 
case  is  a  removable  one?  It  is  the  contention  of  the  plain- 
tiff that  the  cause  of  action  does  not  arise  under  this  act  of 
Congress,  or  at  least  that  it  does  not  so  appear  from  the 
allegations  of  this  petition.  It  is  undoubtedly  true  that  under 
the  Act  March  3,  1887,  c.  378,-«  and  Act  August  13,  1888, 
c.  866,-^,  a  case  not  depending  on  diversity  of  citizenship 
cannot  be  removed  from  a  state  court  into  the  Circuit  Court 
of  the  United  States,  as  one  arising  under  the  Constitution 
or  law  of  the  United  States,  unless  that  fact  appears  by  the 
plaintiff's  own  statement  of  his  cause  of  action;  and  if  it 
does  not,  the  fact  cannot  be  supplied  by  the  petition  for 
removal."^  But  the  court  takes  notice  of  the  laws  of  Con- 
gress, and,  if  the  facts  stated  by  the  plaintiff  as  the  basis 
of  his  right  of  recovery  show  a  right  of  action  given  or 
created  by  such  law,  then  it  may  fairly  be  said  that  it 
appears  from  his  own  statement  of  his  claim  that  the  action 
is  one  arising  under  a  law  of  the  United  States.  If  the 
same  facts  show,  also,  a  right  of  action  created  or  given  by 
a  state  law,  still  it  would  be  for  the  court  to  determine 
under  which  statute  the  action  was  maintainable,  if  at  all; 

firmed  220  U.  S.  500;  31  Sup.  Ct.  28  24   Stat,  at  L.  55^. 

561;    55   L.    Ed.   596;  Neal   v.    St.  2^25    Stat,    at    L.    433     (U.    S. 

Louis,  I.  M.  &  S.  R.  Co.  71  Ark.  Comp.  St.   lOOl,  p.  509). 

445;   Vs  S.  W.   220;    St    Louis,  I.  28  Citing  Chappel  v.  Waterworth, 

M.  &  S.   R.   Co.  V.  Neal,  83  Ark.  155  U.   S.   102;    15   Sup.   Ct.  Rep. 

591;  08  S.  W.  1)58:  affirmed  210  U.  .34;    39    L.    Ed.    85;    reversing    39 

S.   281;    28    Sup.    Ct.    616;    52  L.  United    States    v.    Atlantic    Coast 

Ed.  1061.     See  Georgia  Pac.  R.  Co.  Fed.  Rep.  77;  Third  St.  R.  'Co.  v. 

V.  Davis,  92  Ahu  307;   9  So.  Rep.  Txiwis,  173  U.  S.  457;   19  Sup.  Ct. 

253;  25  Am.  K«t.  Hep.  47.  Kep.  451;    43   L.   Ed.   706. 


NEGLIGENT  INJURY.  4g9 

and  if  one  construction  of  the  federal  statute  would  sustain, 
and  another  construction  would  defeat,  a  recovery  under 
that  statute,  the  action  would  be  one  arising  under  a  law 
of  the  United  States,  and  therefore  of  federal  cognizance.^^ 
It  sufficiently  appears,  therefore,  from  plaintiff's  petition 
that  the  cause  of  action  as  alleged  therein  is  one  arising 
under  a  law  of  the  United  States,"  the  Act  of  June  11, 
1906.^°  The  right  to  remove  a  case,  brought  to  recover 
damages,  because  of  a  failure  to  equip  a  car  is  now  purely 
academic ;  for  the  amendment  to  the  Act  of  Employers ' 
Liability  Act  of  1908  provides  that  no  case  arising  under 
"and  brought  in  any  state  court  or  competent  jurisdiction 
shall  be  removed  to  any  court  of  the  United  States. ' '  ^^^ 

§314.  Judicial  notice. — A  state  court  will  take,  and  is 
bound  to,  notice  of  the  Safety  Appliance  Act.^^ 

§  315.  Pleading. — It  is  not  necessary  in  bringing  an  ac- 
tion under  the  federal  statute  to  specifically  refer  to  it ; 

29  Citing  Starin  v.  New  York,  Where  nn  action  was  brought, 
115  U.  S.  248;  6  Sup.  Ct.  Rep.  based  upon  the  Federal  statutes, 
28;  29  L.  Ed.  388;  affirming  21  and  then  removed  into  the  Federal 
Fed.  Rep.  593 ;  Carson  v.  Dunham,  Court,  and  then  dismissed  by  the 
121  U.  S.  421;  7  Sup.  Ct.  Rep.  plaintiff,  and  the  plaintiff  then 
1030;    30  L.   Ed.   992.  brought   a   common-law  action  for 

30  Hall  V.  Chicago,  etc.,  R.  Co.  this  same  injury,  it  was  held  that 
149  Fed.  Rep.  564.  the    latter   case   could   not   be  re- 

If  the  construction  of  the  Safety  moved    into    the    Federal     Court. 

Appliance  Acts  be  not  drawn  into  iShohoney  v.   Quincy,   0.   &    K.   R. 

question    the    case    cannot    be    re-  Co.  223  Mo.  649;   122  S.  W.  1025. 

moved  to  the  Federal  Court,  even  '°' See  Appendix  A  and  Chapter  XI. 

though   it  be  alleged   in  the  com-  3i  Mobile,  etc.,  R.   Co.  v.  Brom- 

plaint  or  declaration  that  the  train  berg,    141    Ala.   258;    37    So.    Rep. 

was    an    interstate    one,    and    not  395 ;    Kansas   City,  etc.,   R.  Co.   v. 

properly  equipped  with   automatic  Flippo,  138  Ala.  487;  35  So.  Rep. 

couplers.    Mvrtle  v.  Nevada  County  457;  Mcintosh  v.  St.  Louis  &  S.  F. 

&   D.    Rv.    Co.    137    Fed.    193;    St.  R.  Co.  182  Mo.  App.  288;  168  S.  W. 

Louis,  I.  M.  &  S.  R.  Co.  v.  Neal,  821. 

83  Ark.  591;   98  S.  W.  958;  Inter-  That    courts   will   examme    pubhc 

national  &  G.  N.  Rv.  Co.  v.  Elder,  documents   m   construing   a  statute, 

^A   rr        rt-        A          cAc      nn   c    \X7  see     Johnson     v.     bouthern     Pacific 

44  Tex.  Civ.  App.  605;    99  S.  W.  ^o.  196  U.  S.  1;  25  Sup.  Ct.  158;  49 


856, 


L.  Ed.   363;   Chicaso,   M.  &   St.   P. 
Rv.  Co.  129  Fed.  522. 


490 


FEDERAL   SAFETY    APPLIANCE   ACT. 


in  fact,  it  is  not  good  pleading  to  do  so.  "As  a  matter  of 
pleading,  it  certainly  cannot  be  said  that,  in  order  to  base 
a  right  of  recovery  on  the  provisions  of  the  statute,  it  was 
necessary  to  cite  the  statute  or  its  provisions  in  the  petition. 
The  petition  in  set  words  charged  the  defendant  with  negli- 
gence in  having  and  operating  a  car  upon  which  was  a 
defective,  worn  out  and  inoperative  coupler  which  would 
not  couple  by  impact.  Charging  the  defendant  with  negli- 
gence was  charging  that  the  company  had  not  met  or  ful- 
filled the  duty  imposed  upon  it  by  law  with  respect  to  having 
and  keeping  the  coupler  upon  the  car  in  proper  con- 
dition for  use.  It  was  not  necessary,  nor,  indeed,  per- 
missible, under  the  rules  of  pleading,  that  the  petition  should 
set  forth  the  law  which  had  been  violated.^'^  *  *  * 
Therefore,  when  the  petition  charged  the  defendant  with 
negligence  with  respect  to  the  coupler  upon  the  car  the  de- 
fendant must  have  known,  as  the  car  was  used  in  interstate 
traffic,  the  act  of  Congress  would  necessarily  come  into  con- 
sideration in  defining  the  obligations  resting  upon  the  de- 
fendant company. ' '  "^ 


3*  "It  is  not  for  one  moment  sup- 
posable  that  the  officers  of  the  de- 
fendant company  or  the  learned  coun- 
sel representing  it  in  this  case  are  not, 
and  were  not,  when  this  action  was 
commenced,  fully  aware  of  the  pro- 
visions of  the  Act  of  Congress  of 
March  2,  1893,  and  the  acts  of  the 
General  Assembly  of  the  State  of 
Iowa,  which  now  form  sections  2079 
and  2083,  both  inclusive,  of  the  code 
of  the  state,  and  therefore  knew  that 
as  cars  used  in  interstate  traffic  the 
obligations  of  the  act  of  Congress 
were  in  force,  and  as  to  cars  used  with- 
in the  State  of  Iowa  the  named 
sections  of  the  code  were  applicable." 
From  the  opinion  above  quoted  from. 

The  complaint  must  allege  that 
the  car  was,  at  the  time  of  the  acci- 
dent, used  in  moving  interstate 
traffic.  Brinkmeicr  v.  Missouri  Pac. 
Ily.  Co.  81  Kan.  101;  105  Pac.  221, 
affirmed  224  U.  S.  208;  32  Sup.  Ct. 
412;  -,(•>  L.  Ed.  758;  San  Antonio  & 
A.  1*.  liy.  Co.  V.  Wagner  (Tex.  Civ. 
App.)  100  S.  W.  24. 

Where  there  was  no  direct  alle- 
gation that  the  defendant  railroad 
moved  the  defective  cars,  yet  other 


allegations  were  held  sufficient  to 
show  that  was  done  by  it.  Grand 
Trunk  W.  Ry.  Co.  v.  Lindsay,  201 
Fed.  836,  citing  Sargent  v.  Baublis, 
215  111.  430;  74  N.  E.  455,  and  Ameri- 
can Bridge  Co.  v.  Peden,  129  Fed. 
1004;  64  C.  C.  A.  581. 

'^  Voelker  v.  Chicago,  etc.,  Ry. 
Co.  116  Fed.  Rep.  867.  Approved, 
Missouri  Pac.  Ry.  Co.  v.  Brink- 
meicr, 77  Kan.  14;  93  Pac.  Rep.  621; 
50  Am.  &  Eng.  R.  Cas.  (N.  S.)  441; 
Kansas  City,  etc.,  R.  Co.  v.  Flippo, 
138  Ala.  487;  35  So.  Rep.  457.  See 
Lewis  V.  Pennsylvania  R.  Co.  220 
Pa.  317;  69  Atl.  821. 

It  has  been  held  that  it  need  not 
be  alleged  or  proved  that  the  de- 
fective car  was  loaded  with  interstate 
traffic.  Felt  v.  Denver  &  R.  G.  R. 
Co.  48  Colo.  249:  110  Pac.  1136. 

If  the  complaint  charge  that  the 
railroad  runs  through  several  states, 
evidence  to  show  that  it  was  engaged 
in  interstate  commerce  is  admissible. 
Missouri  Pacific  Ry.  Co.  v.  Brink- 
meicr, 77  Kan.  14;  93  Pac.  621. 

If  the  answer  does  not  deny 
that  the  car  was  used  in  interstate 
commerce,     the    allegation     that    it 


NEGLIGENT   INJURY. 


491 


§  316.  Validity  of  section  concerning  releases  from  lia- 
bility.— Statutes  similar  to  section  five  eoneei'iiing  a  servant 
agreeing  to  exempt  his  master  from  liability  for  his  in- 
juries have  been  held  valid  in  a  number  of  states.  A 
statute  prohibiting  such  a  contract  is  constitutional  and 
within  the  power  of  a  legislature  to  adopt  on  the  ground 
of  public  policy.^* 

§  317.  Statute  of  Limitations. — The  Statute  of  Limita- 
tions of  the  state  w^here  the  injury  is  received  and  the  suit 
is  brought  is  applicable  to  the  action,  in  the  absence  of  any 
Federal  statute  or  the  subject.^^  An  amendment  which 
states  a  new  cause  of  action  will  not  be  allowed  after  the 
Statute  of  Limitations  has  run.^® 


was  so  used  need  not  l)e  proved. 
Norfolk  &  W.  Ey.  Co.  v.  Hazelrigg, 
170  Fed.  551. 

Where  the  action  is  a  common- 
law  one,  evidence  that  all  roads 
were  discarding  the  "Leeds"  coup- 
lers and  using  automatic  couplers 
was  held  not  admissible.  Sho- 
honey  v.  Quincy  &  0.  K.  R.  Co. 
223  ivio.  649;    122  S.  W.   1025. 

In  a  case  in  the  United  States 
Court  for  the  District  of  North 
Carolina,  the  court  held  an  action 
to  recover  a  penalty  a  civil  ac- 
tion, and  that  it  was  not  necessary 
to  allege  the  specific  date  of  the 
violation  of  the  statute.  United 
States  V.  Atlantic,  etc.,  Ry.  Co. 
153   Fed.   Rep.  918. 

In  Alabama,  very  general  terms, 
little  short  of  conclusions,  may  be 
used  in  pleading.  Kansas  City, 
etc.,  R.  Co.  V.  Flippo,  138  Ala. 
48?';  35  So.  Rep.  457;  adopting 
Georgia  Pac.  R.  Co.  v.  Davis,  92 
Ala.  307;  9  So.  Rep.  253;  25  Am. 
St.  Rep.  47.  In  this  state  the 
complaint  need  not  contain  an  al- 
legation stating  in  what  manner 
the  failure  to  comply  with  the 
statute  caused  the  injury.  INIobile, 
etc.,  R.  Co.  v.  Bromberg,  141  Ala. 
258;  37  So.  Rep.  395. 


34  Pittsburg,  etc.,  R.  Co.  v.  Mont- 
gomery, 152  Ind.  1;  45  N.  E.  Rep. 
582;  Pittsburg,  etc.,  R.  Co.  v. 
Hosea,  152  Ind.  412;  53  N.  E. 
Rep.  419;  Kilpatrick  v.  Railroad 
Co.  74  Vt.  288;  52  Atl.  Rep.  531; 
93  Am.  St.  Rep.  887;  Goldenstein 
V.  Baltimore  &  0.  Ry.  Co.  37 
Wash.  L.  Rep.  2;  Weir  v.  Roun- 
tree,  173  Fed.  776;  Atlantic  Coast 
Line  v.  Riverside  Mills,  219  U.  S. 
186;  31  S.  C.  164;  55  L.  Ed. 
167;  affirming  168  Fed.  990;  Mc- 
Namara  v.  Washington  Terminal, 
35  App.  D.  C.  230;  Louisville  & 
N.  R.  Co.  V,  Scott,  219  U.  S. 
209;  31  Sup.  Ct.  171;  55  L.  Ed. 
— ;  Chicago,  B.  &  Q.  R.  Co.  v. 
McGuire,  219  U.  S.  549;  31  Sup. 
Ct.  259;  55  L.  Ed.  — ;  affirming 
138  Iowa,  664;  116  N,  W.  801; 
Norfolk  &  W.  Ry.  Co.  v.  Dixie, 
111  Va.  813;   69  S.  E.  1106. 

A  statute  forbidding  a  contract 
that  the  employee  shall  not  recover 
damages  if  he  accepts  relief  from 
a  relief  association  has  been  sus- 
tained. McGuire  v.  Cliicago,  etc., 
R.  Co.  131  Iowa,  340;  108  N.  W. 
Rep.  902,  contra,  Shaver  v.  Penn- 
sylvania Co.  71  Fed.  Rep.  331. 

'^  Nichols  V.  Chesapeake  &  O.  R. 
Co.  195  Fed.  913;  115  C.  C.  A.  601. 
See  also  Campbell  v.  Haverhill,  155 
U.  S.  610;  15  Sup.  Ct.  217;  39  L.  Ed. 
280;  Brinkmeier  v.  Missouri  Pacific 
R.  Co.  224  U.  S.  268;  32  Sup.  Ct.  412; 
56  L.  Ed.  758,  affirming  81  Kan.  101 ; 
105  Pac.  221;  Texas  &  N.  O.  R.  Co.  v. 
Miller,  221  U.  S.  408;  31  Sup.  Ct.  534; 
55  L.  Ed.  789. 

^^  Brinkmeier  v.  Missouri  Pacific 
Ry.  Co.,  supra. 


CHAPTER  XIX. 
ACTION  TO  RECOVER  PENALTY. 


318.  "Suits"  —  Criminal  offense  —  324.  Defendant      relying      on     ex- 

Presumption  of  innocence —  ceptions  in  proviso  of  acts. 

Burden — Reasonable    doubt.  325.  Jury  trial. 

319.  Action    to    recover    a   penalty  326.  Directing  the  verdict. 

not  a  criminal  action.  327.  Amount  of  penalty. 

320.  Joint  action.  328.  Penalty    for    failure    to    equip 

321.  Government's  petition.  with  grab  irons. 

322.  Sufficiency  of  proof — Burden.  329.  Writ  of  error. 

323.  Expert  testimony.  330.  Twice  in  jeopardy. 

§  318.  "Suits" — Criminal  offense — Presumption  of  inno- 
cence— Burden — Reasonable  doubt.— An  action  or  suit 
brought  by  the  government  to  recover  a  penalty  because 
of  non-compliance  with  the  .statute  in  providing  cars  with 
automatic  couplers  has  been  held  to  be  a  criminal  action 
and  not  a  civil  action,  and  must  be  tried  as  a  criminal  case, 
violations  of  the  statute  being  construed  as  criminal  offenses 
— crimes  and  misdemeanors  in  the  broad  sense  of  the  words. 
The  presumption,  it  was  held,  therefore,  that  the  defendant 
is  innocent,  and  that  it  cannot  be  found  guilty  until  the 
evidence  removes  all  reasonable  doubt  of  its  guilt,  the  burden 
resting  upon  the  government  to  show  beyond  a  reasonable 
doubt  the  existence  of  every  element  necessary  to  constitute 
the  offense ;  and  this  burden  continues  throughout  the  case 
and  never  shifts  to  the  defendant.^ 

§  319.    Action  to  recover  penalty  not  a  criminal  action. — 

In  the  Utiited  States  (V)urt  for  the  District  of  North  Caro- 
lina, Judge  Pui-ncll  held,  in  1907,  that  in  an  action  by  the 
government  to  recover  a  penalty  for  a  violation  of  the  Safety 
Appliance  Act,  the  action  was  governed  by  the  state  statute 
and  was  a  civil  suit,  and  tli;it  it  was  not  necessary  to  allege 
the  specific  date  on  which  the  statute  had  been  violated  by 

'United   states  v.   Illinois  Cent.   R.  Co.   150  Fed.   Rep.   180. 
402 


ACTION  TO  RECOVKK  PENALTY. 


493 


the  defendant.  "This  is  an  action  in  debt,"-  said  the  court, 
and  he  follows  the  State  Supreme  Court's  construction  of 
such  a  suit.^  "The  number  of  the  car  and  nature  of  the 
traffic  and  the  date  given  in  each  count  sufficiently  advise 
the  defendant  of  the  times  of  the  violation,"  said  the  court, 
so  that  it  can  intelligently  prepare  its  defense.  This  is 
sufficient."*  In  another  court  it  was  held  that  it  was  only 
incumbent  upon  the  government  to  prove  its  case  by  a  pre- 
ponderance of  the  evidence,  and  it  need  not  show  the  facts 
constituting  the  violation  beyond  a  reasonable  doubt  r'  and 
this  is  now  the  accepted  rule,  the  case  being  considered 
merely  a  civil  action  to  recover  a  penalty.^* 


2  Citing  United  States  v.  South- 
ern Ry.  Co.  135  Fed.  Rep.  122. 

3  Citing  Hilton  Lumber  Co.  v. 
Atlantic  Coast  Line  Railroad,  141 
N.  C.  171;  53  N".  E.  Rep.  823;  G 
L.  R.  A.  (N.  S.)  225. 

4  LTnited  States  v.  Atlantic,  etc., 
R.  Co.  153  Fed,  Rep.  918. 

5  United  States  v.  Central  of  Ga. 
Ry.    Co.   157   Fed.   Rep.  893. 

5*  Atlantic  Coast  Line  R.  Co.  v. 
United  States,  168  Fed.  Rep.  175 
(decided  INIarch  1,  1909);  United 
States  V.  Atlantic  Coast  Line  R. 
Co.  Appendix  G;  United  States 
V.  P.  &  Ry.  Co.  162  Fed.  Rep.  403; 
United  States  v.  Chicago,  etc.,  R. 
Co.  162  Fed.  Rep.  775;  United 
States  V.  Baltimore,  etc.,  R.  Co. 
159  Fed.  Rep.  33;  Wabash  R.  Co. 
V.  United  iStates,  168  Fed.  Rep. 
1  (decided  February  3,  1909); 
United  States  v.  Southern  Ry.  Co. 
Appendix  G,  167  Fed.  699)  ; 
United  States  v.  Illinois  Central 
R.  Oo.  (Appendix  G,  170  Fed. 
542)  ;  166  Fed.  997:  United  States 
V.  Philadelphia  &  R.  Ry.  Co.  160 
Fed.  696;  United  Siiates  v.  Louis- 
ville &  y.  R.  Co.  162  Fed.  185; 
United  States  v.  Illinois  Central 
R.  Co.  170  Fed.  542;  United  States 


V.  Bait.  &  0.  S.  W.  R.  159  Fed. 
33,  38;  86  C.  C.  A.  223;  United 
States  V.  Louisville  &  X.  R.  Co 
167  Fed.  306;  Chicago,  B.  &  Q 
Ry.  Co.  V.  United  States,  170  Fed 
556;  Atlantic  Coast  Line  R.  Co 
V.  United  States,  168  Fed.  175,  af 
firming  153  Fed.  91'8;  United 
States  V.  Chicago,  R.  I.  &  P.  Ry. 
Co.  173  Fed.  684;  St.  Louis  S.  W. 
Ry.  Co.  V.  United  States,  183  Fed. 
770;  Atchison,  T.  &  S.  F.  Ry.  Co. 
V.  United  States,  172  Fed.  194; 
United  States  v.  Nevada  County 
Narrow  Gauge  R.  Co.  167  Fed. 
695;  Louisville  &  K  R.  Co.  v. 
United  States,  174  Fed.  102.1;  98 
C.  C.  A.  664;  Lucas  v.  Peoria  &  E. 
Ry.  Co.  171  III.  App.  1. 

This  question  has  been  put  at  rest 
by  the  Supreme  Court.  Chicago,  B. 
&  Q.  R.  Co.  V.  United  States,  220  U. 
S.  559;  31  Sup.  Ct.  612;  55  L.  Ed.  582; 
United  States  v.  Denver  &  R.  G.  R. 
Co.  163  Fed.  519;  United  States  v. 
St.  Louis  &  S.  W.  Ry.  184  Fed.  28; 
United  States  v.  Atlantic  Coast  Line 
R.  Co.  182  Fed.  284;  United  States  v. 
Baltimore  &  Ohio  R.  Co.  176  Fed. 
114;  Chicago,  B.  &  Q.  R.  Co.  v. 
United  States,  170  Fed.  556;  95 
C.  C.  A.  41. 

An  action  to  recover  a  penalty  can 
be  brought  in  the  Circuit  Court  of  the 
District  of  Columbia  if  service  of 
process  can  there  be  made  on  the  de- 
fendant railway  company.  United 
States  V.  Baltimore  &  O.  R.  Co.  26 
App.  D.  C.  587. 


494  FEDERAL   SAFETY   APPLIANCE   ACT. 

§  320.  Joint  action. — A  joint  action  may  be  maintained 
against  two  or  more  companies  hauling  the  same  car  in  a 
continuous  passage  over  their  several  roads.^ 

§  321.  Government's  petition. — In  a  complaint  to  re- 
cover a  penalty  under  this  statute,  it  is  not  defective  for  a 
failure  to  negative  the  exception  in  any  proviso  of  the  act/ 
nor  is  it  defective  because  it  shows  that  only  one  of  the 
couplers  was  out  of  repair  and  defective,  being  so  because 
the  uncoupling  chain  was  "kinked;"  or  because  it  fails  to 
negative  the  exercise  of  reasonable  care  on  the  part  of  the 
defendant  in  maintaining  the  coupler  in  an  operative  condi- 
tion ;  nor,  although  showing  an  actual  and  substantial  haul- 
ing of  the  car  in  interstate  traffic,  because  it  fails  to  specify 
how  far  the  hauling  was  continued,  or  is  even  silent  as  to 
the  actual  use  of  the  defective  coupler.^  The  practice  in  the 
state  courts  of  the  district  in  civil  cases  control  and  must 
be  followed.®*  It  need  not  be  alleged  that  the  defendant 
acted  wilfully  in  not  making  the  repairs.^^  Nor  need  it  be 
averred  that  the  defendant  had  acted  knowingly  and  negli- 
gently; it  being  sufficient  to  set  forth  the  cause  of  action 
in  the  language  of  the  statute,  with  specifications  of  the  time 


^United   States   v.    Chicago,    etc.,  United    States,    168   Fed.    Rep    175. 

R.  Co.  143  Fed.  Rep.  353;  Chaffee  V.  (decided    March    1,     1909);    United 

United    States,    18   Wall.    518,    538.  States  v.  Atlantic  Coast  Line  R.  Co. 

'  Schlemmer  v.  Buffalo,  etc.,  R.  Co.  Appendix  G;  Chicago,  etc.,  R.  Co.  v. 

205  U.  S.  1;  27  Sup.  Ct.  Rep.  407;  51  United    States,    168    Fed.    Rep.    236 

L.  Ed.  681,  reversing  207  Pa.  St.  198;  (decided    March    10,    1909);    United 

56  Atl.   Rep.  417;   United  States  v.  States  v.  Montpelier  &  W.  R.  R.  R. 

Houston,  B.  &  T.  Ry.  Co.  205  Fed.  175  Fed.  874. 

344;    (C.  C.    A.);    United   States   v.  In  the  first  case  cited  it  was  held 

Kansas  City  Southern  Ry.  Co.  202  that  in  alleging  the  time  of  the  vio- 

I'ed.  828;  121  C.  C.  A.  136;  Chicago,  lation  of  the  statute  the  declaration 

B.  &  Q.  R.  Co.  V.  Un'ted  States,  195  was  not  bad  because  it  was  laid  "on  or 

Fed.  241;  115  C.  C.  A.  193;  New  York  about"    a    certain    day    named.      So 

Central  &   H.  R.   R    Co.  v.   United  decided    also    in    United    States    v. 

States,  165  Fed.  833;  91  C.  C.  A.  519;  Atlantic  Coast  Line  R.  Co.  153  Fed. 

United  States  v.  Kansas  City  South-  918,  and  in  Louisville  &  N.  R.  Co.  v. 

ern  Ry.  Co.  189  Fed.  471.  United    States,    186    Fed.    280;    108 

*  United    States    v.    Denver,    etc.,  C.  C.  A.  326. 

R.  Co.  163  Fed.  Rep.  519.  »'  United  States  v.  Illinois  Central 

«•  Atlantic  Coast  Line   R.   Co.   v.  R.  Co.  170  Fed.  547. 


ACTION    TO    RECOVER    PENALTY. 


495 


and  place,  the  ear,  the  particular  part  of  the  car  where  the 
defect  existed,  and  the  nature  of  the  defect.**- 

§  322.  Sufficiency  of  proof — Burden. — It  is  not  neces- 
sary that  the  government  prove  its  case  beyond  a  reasonable 
doubt ;  but  it  has  the  burden  to  prove  its  case  by  evidence 
that  is  clear  and  satisfactory  to  the  jury,  and  that  burden 
never  shifts.  It  must  make  out  all  the  elements  which  go 
to  constitute  the  charge  in  the  petition.  If  it  fails  to  come 
up  to  his  standard,  it  fails  to  make  out  a  case."  The  gov- 
ernment need  not  show  that  the  defendant  had  not  used 
due  care  or  ordinary  diligence  in  making  an  inspection 
and  in  repairing  the  defects  an  inspection  would  have 
shown. ^°     The  rule  that  positive  testimony  is  preferred  to 


^-  United  States  v.  Oregon  Short 
Line  R.  Co.  180  Fed.  483. 

The  use  of  the  words  "on  or  about," 
in  stating  the  time,  does  not  render 
the  complaint  or  petition  uncertain. 
Atlantic  Coast  Line  R.  Co.  v.  United 
States,  168  Fed.  175. 

As  an  example  of  what  is  sufficient 
pleading,  see  Louisville  &  N.  R.  Co. 
V.  United  States,  186  Fed.  280. 

'  United  States  v.  Philadelphia, 
etc.,  R.  Co.  160  Fed.  696  (Appendix 
G);  United  States  v.  Pennsylvania 
R.  Co.  (Appendix  G) ;  United  States  v. 
Lehigh  Valley  R.  Co.  160  Fed.  696 
(Appendix  G);  United  States  v. 
Chicago,  etc.,  R.  Co.  162  Fed.  Rep. 
775;  United  States  v.  Louisville,  etc., 
R.  162  Fed.  Rep.  185;  United  States 
V.  Chesapeake  &  Ohio  Rj'.  Co.  (Ap- 
pendix G);  United  States  v.  Chicago, 
etc.,  Ry.  Co.  (Appendix  G);  United 
States  V.  Chicago,  etc.,  R.  Co.  173 
Fed.  684  (Appendix  G) ;  United  States 
V.  Nevada,  etc.,  R.  Co.  167  Fed.  965 
(Appendix  G);  United  States  v.  Bos- 
ton &  Maine  R.  Co.  168  Fed.  148 
(Appendix  G);  United  States  v. 
Illinois  Central  R.  Co.  170  Fed.  542; 
United  States  v.  Baltimore  &  O.  S. 
W.  R.  159  Fed.  33,  38;  86  C.  C.  A.  223; 
United  States  v.  Louisville  &  N.  R. 
Co.  167  Fed.  306;  Chicago,  B.  &  Q. 
Ry.  Co.  V.  United  States,  170  Fed. 
556;  Atlantic  Coast  Line  R.  Co.  v. 


United  States,  168  Fed.  175,  affirming 
153  Fed.  918;  United  States  v.  Chi- 
cago, R.  I.  &  P.  Ry.  Co.  173  Fed. 
684;  St.  Louis  S.  W.  Ry.  Co.  v.  United 
States,  183  Fed.  770;  Louisville  &  N. 
R.  Co.  V.  United  States,  174  Fed. 
1021;  98  C.  C.  A.  664;  United  States 
V.  Central  of  Georgia,  157  Fed.  893; 
United  States  v.  Illinois  Central  R. 
Co.  166  Fed.  997;  United  States  v. 
Southern  Pacific,  167  Fed.  699; 
United  States  v.  Southern  Ry.  Co. 
170  Fed.  1014;  United  States  v.  Mont- 
pelier  &  W.  R.  Co.  175  Fed.  874; 
United  States  v.  Kansas  City  South- 
ern Ry.  Co.  202  Fed.  828. 

"Every  material  fact  must  be 
proved  by  a  fair  balance  of  evidence 
to  entitle  the  plaintiff  to  recover  the 
penalty  prescribed  by  law."  United 
States  V.  Montpelier  &  W.  R.  R.  R. 
175  Fed.  874  (see  this  case  for  an 
example). 

Weight  to  be  given  to  United  States 
inspectors  and  to  the  defendant's  in- 
spectors, see  Norfolk  &  W.  Ry.  Co. 
v.  United  States,  177  Fed.  623.  The 
inspectors  are  not  bound  to  inform  the 
company  of  the  defect.  Norfolk  & 
W.  Ry.  Co.  v.  U.  S.  191  Fed.  302. 

'°  United  States  v.  Atlantic,  etc., 
R.  Co.  153  Fed.  Rep.  918;  United 
States  v.  Wabash  R.  Co.  (Appendix 
G). 


496  FEDERAL,   SAFETY   APPLIANCE  ACT. 

negative  testimony,  in  the  absence  of  other  testimony  or 
corroborative  evidence,  has  been  adopted;'^  but  the  testi- 
mony of  a  car  inspector  that  he  inspected  particular  cars  in 
the  furtherance  of  his  duty,  and  that  he  failed  to  find  partic- 
ular defects,  is  positive  testimony  of  a  negative  fact.^^*  A 
mere  preponderance  of  the  evidence  is  sufficient  to  make  out 
the  government's  case.^  There  is  no  legal  obligation  on  the 
part  of  the  government  inspectors  to  notify  a  railway  com- 
pany of  defects  found  in  its  equipment;  and  therefore  they 
may  testify  to  defects  they  had  observed  before  the  govern- 
ment brought  its  action,  even  though  such  action  is  solely 
based  upon  the  information  thus  furnished.  Their  failure  to 
inform  the  railway  company  is  not  to  be  considered  by  the 
jury  as  discrediting  their  testimony.-  No  witness  is  to  be 
discredited  by  the  jury  merely  by  reason  of  his  personal 
interest  as  an  inspector  of  the  government  or  as  an  em- 
ployee of  the  defendant  carrier.^  Records  kept  by  the  de- 
fendant for  the  purpose  of  giving  necessary  information  on 
which  the  carrier  itself  would  rely,  although  not  proved  as 
would  be  necessary  if  offered  by  the  defendant  for  self- 
serving  purposes,  are  admissible  when  offered  by  the  gov- 
ernment as  in  the  nature  of  an  admission.*  The  exhibition  of 
model  couplers  to  the  jury,  merely  for  the  purpose  of  illus- 

"  United  States  v.  Atchison,  etc.,  which  to  your  mind  is  the  most  satis- 

R.  Co.  167  Fed.  696  (Appendix  G);  factory  and  is  entitled  to  the  greatest 

United  States  v.  Baltimore  &  0.  Ry.  weight."     United  States  v.  Southern 

Co.   170  Fed.  456;  United  States  v.  Pacific    Co.    167    Fed.    699;    United 

Southern  Pacific  Co.  167  Fed.  699.  States  v.  Central  of  Georgia,  157  Fed. 

"•  Norfolk  &  W.  Ry.  Co.  v.  United  893;  United  States  v.  Boston  &  M. 

States,  177  Fed.  623;  101  C.  C.  A.  249.  R.  Co.  168  Fed.  148. 

'  United  States  v.  Nevada  County  "  Norfolk  &  W.  Ry.  Co.  v.  United 

N.  Y.  R.  Co.  167  Fed.  695;  United  States,   191  Fed.  302;  101  C.  C.  A. 

States  V.  Southern  Ry.  Co.  170  Fed.  249;   Chicago,   B.   &   Q.   Ry.   Co.   v. 

1014;  United  States  v.  Atchison,  T.  United  States,  211  Fed.  12;  127  C.  C. 

P.  &   St.  F.  Ry.  Co.  167  Fed.   696;  A.    438;    United    States   v.    Chicago 

United   States   v.    Boston   &   M.    R.  Great   W.    Ry.    Co.    162    Fed.    775; 

Co.   168  Fed.   148;  United  States  v.  United  States  v.   Baltimore  &  Ohio 

Baltimore  k  Ohio  R.  Co.   176  Fed.  R.  Co.  170  Fed.  456. 
114;  Wheeling  Terminal  Ry.  Co.  v.  '  Norfolk  &  "W.  Ry.  Co.  v.  United 

Russell,  209  Fed.  795;  126  C.  C.  A.  States,  177  Fed.  623;  101  C.  C.  A. 

519.  249;   United   States   v.   Chicago,   G. 

"By  preponderance  of  evidence  is  W.  Ry.  Co.  162  Fed.  775. 
not  RK^ant  the  greater  number  of  wit-  *  Louisville  &  N.  R.  Co.  v.  United 

ncKses,   })ut   it   means   that  evidence  States,  186  Fed.  280;  108  C.  C.  A.  326. 


ACTION  TO  RECOVER  PENALTY.  497 

trating  particular  defects,  is  permissible.'^  A  memorandum 
made  by  a  government  inspector  from  original  waybills, 
showing  the  origins,  destinations,  consignors  and  consignees 
of  particular  shipments,  may  be  read  to  the  jury  as  an 
original  memorandum  made  at  the  time  of  his  inspection, 
and,  in  the  absence  of  evidence  to  the  contrary,  may  be 
inferred  to  have  been  correctly  made."  The  ownership  of 
the  cars  is  immaterial ;  for  the  defendant  is  liable  for  the 
use  or  hauling  of  a  foreign  car  in  violation  of  the  statute.'^ 
The  government  must  show  that  the  defendant  was,  at  the 
time  the  alleged  offense  was  committed,  a  common  carrier 
by  railroad  engaged  in  interstate  commerce ;  that  it  either 
hauled  or  permitted  to  be  hauled  over  its  line,  the  locomo- 
tives, trains  or  cars  mentioned  in  the  complaint;  and  that 
these  locomotives,  trains  or  cars  were  not  provided  with  the 
equipment  required  by  the  statute.^"  When  it  has  made  this 
proof,  then  the  burden  is  upon  the  defendant  to  show  an 
excuse — to  show  that  it  had  used  all  reasonably  possible  en- 
deavor to  perform  its  duty  to  discover  and  correct  the  de- 
fect.^2» 

'  Norfolk  &  W.  R.  Co.  v.  United  car    was    being    used    in    interstate 

States,  191  Fed.  302;  112  C.  C.  A.  46.  commerce  when  out  of  repair,  it  is 

*  Louisville  &  N.  R.  Co.  v.  United  admitted   and   need   not   be   proven. 

States,  186  Fed.  280;  108  C.  C.  A.  326.  Norfolk  &  W.  Ry.  Co.  v.  Hazelrigg, 

7  United  States  v.  Chicago  G.  W.  170  Fed.  551. 

Ry.  Co.   162  Fed.  775;  Crawford  v.  The  prosecution  may  use  the  record 

New  York  Central  &  H.  R.  R.  Co.  of   cars    kept   by   the   defendant   to 

10  Am.  Neg.  166.  show  that  the  car  was  used  on  inter- 

'-  United   States   v.   Pacific   Coast  state  commerce.     Louisville  &  N.  R. 

Ry.  Co.  (Appendix  G).  Co.  v.  United  States,  186  Fed.  280. 

^^*  United  States  v.  Illinois  Central  Evidence  of  the  condition  of  the 
R.  Co.  170  Fed.  542  (Appendix  G).  cars  when  last  inspected,  thirty-seven 
An  expert  trainman  may  be  asked  at  miles  distant,  before  they  arrived  at 
the  trial  concerning  the  condition  of  the  station  where  the  defects  were 
the  car  coupler  and  as  to  what  was  discovered  and  material  slips  of  the 
necessary  in  order  to  operate  such  workmen  who  repaired  them  were 
coupler.  The  mode  of  operating  auto-  held  competent  evidence  upon  the 
matic  coupling  mechanism  and  the  issue  in  an  action  to  recover  a  penalty, 
effect  of  various  conditions  thereof  is  United  States  v.  Rio  Grande  W.  Ry. 
the  subject  of  expert  testimony.  Co.  174  Fed.  399. 
Wabash  R.  Co.  v.  United  States,  168  "Repeated  and  unsuccessful  efforts 
Fed.  Rep.  1  (decided  February  3,  to  make  the  lever  operate  are  some 
1909).  See  Chicago,  etc.,  R.  Co.  v.  evidence  that  it  was  not  in  a  con- 
King,  169  Fed.  Rep.  272  (decided  dition  required  by  the  statute." 
February  3,  1909).  Nichols    v.    Chesapeake    &    Ohio    R. 

If  the  answer  does  not  deny  that  Co.    195   Fed.    913;   Louisville   &   N. 


498  FEDERAL,  SAFETY  APPLIANCE  ACT. 

§  323.  Expert  testimony. — Experts  may  testify  respecting 
automatic  couplers'  operation  and  normal  condition;*  and  a 
brakeman  of  several  years'  experience  may  also  testify  that 
a  coupler  when  in  ordinary  repair  could  be  closed  with  the 
foot  as  well  as  the  hand.^  But  a  witness  cannot  be  asked 
whether  coupler  in  ordinary  repair  could  be  closed  with  the 
foot  as  well  as  the  hand;  for  it  calls  for  a  conclusion  and 
invades  the  province  of  the  jury.  Yet  if  the  evidence  shows 
beyond  contradiction  that  the  coupler  was  not  in  a  state  of 
ordinary  repair,  the  error  in  permitting  him  to  so  testify 
is  not  prejudicial.^  Whether  openings  in  the  buffer  on  the 
ends  of  the  cars  afford  the  security  intended  by  the  act,  so 
as  to  constitute  a  substantial  compliance  therewith,  is  not 
a  proper  subject  for  expert  testimony,  but  is  one  for  the 
determination  of  the  jury.^° 

§  324.  Defendant  relying  on  exceptions  in  provisos  of 
acts. — If  the  defendant  seeks  to  defend  within  the  clauses 
of  any  proviso  of  the  act,  it  must  set  up  such  defense  by  an 
answer ;  and  clearly  bring  itself  within  the  terms  of  the 
proviso  before  it  can  claim  immunity." 

§  325.  Jury  trial. — There  is  no  law  that  authorizes  a 
trial  by  the  court  in  an  action  to  recover  a  penalty ;  the  case 
must  be  tried  by  a  jury ;  and  if  a  court  should  assume  to  try 
a  case,  its  judgment  cannot  be  reviewed  at  the  instance  of 
the  government.^^^ 

R.  Co.  V.  Wilson,  188  Fed.  417;  110  affirmed  233  U.  S.  42;  34  Sup.  Ct.  581; 

C.    C.    A.    217;    Hunter    v.    Illinois  56  L.  Ed.  828. 

Central  R.  Co.  188  Fed.  045;  110  C.  » Grand  Trunk  W.  Ry.  Co.  v.  Lind- 

C.  A.  459;   Popplar  v.   Minneapolis,  say,  svpra. 

St.  P.  &  S.  S.  M.  Ry.  Co.  121  Minn.  '"  Spokane  &  I.  E.  R.  Co.  v.  United 

413;  141  N.  W.  798.  States,  210  Fed.  243;  127  C.  C.  A.  61. 

Judicial   notice  is  not  taken   that  "  United  States  v.  Trinity  &  B.  V. 

a  carrier  is  engaged  in  intenstate  com-  Ry.  Co.  211  Fed.  448;  United  States 

merce.     Southern  Ry.  Co.  v.  R.  R.  v.  Kansas  City  Southern  Ry.  Co.  202 

Commission,  179  Ind.  23;  100  N.  E.  Fed.  828;  121  C.  C.  A.  136;  Chicago, 

337.  B.  k  Q.  R.  Co.  v.  United  States,  195 

*  Wabash  R.  Co.  v.  United  States,  Fed.  241;  115  C.  C.  A.  193;  United 

108  Fed.  1;  93  C.  C.  A.  393.  States  v.  Kansas  City  Southern  Ry. 

8  Grand  Trunk  W.  l{y.  Co.  v.  Lind-  Co.  189  Fed.  471. 

Bay,  201  Fed.  830;  120  C.  C.  A.  106,  "=■  United   States   v.    Louisville   &. 

N.  R.  Co.  167  Fed.  306. 


ACTION  TO  RECOVER  PENALTY. 


499 


§  326.  Directing  the  verdict. — If  the  evidence  produces 
evidence  clearly  sustaining  its  declaration  or  petition,  and 
the  defendant  introduces  none,  then  the  government  is 
entitled  to  have  the  jury  directed  to  return  a  verdict  in 
its  behalf. ^^^  "If,  in  a  civil  action  to  recover  a  penalty,  the 
defendant  is  entitled,  the  evidence  being  undisputed,  to 
have  a  peremptory  instruction  in  his  behalf,  it  is  difficult 
to  perceive  why  the  government  is  not  entitled  to  a  per- 
emptory instruction  in  its  favor,  where  the  undisputed  tes- 
timony left  no  facts  for  the  jury  to  consider,  but  established, 
beyond  all  question  and  as  a  matter  of  law,  its  right  to 
judgment  for  the  prescribed  penalty.  "^'^    But  it  has  been 


^-^  United  States  v.  Atlantic  Coast 
Line  R.  Co.  182  Fed.  284;  Chicago,  B. 
&  Q.  Ry.  Co.  V.  United  States,  220 
U.  S.  559;  31  Sup.  Ct.  612;  55  L.  Ed. 
1204,  affirming  170  Fed.  556;  95  C.  C. 
A.  642. 

>=3Hepner  v.  United  States,  213, 
p.  114;  29  Sup.  Ct.,  p.  499;  53  L.  Ed. 
720;  27  L.  R.  A.  (N.  S.)  739;  16  A.  & 
E.  Ann.  Cas.  960. 

"This  is  a  civil  case;  otherwise, 
there  would  have  been  an  indictment. 
The  reasoning  of  the  Supreme  Court 
and  its  conclusion  is  controlling  on  my 
action.  The  evidence  here  is  singu- 
larly clear,  and  absolutely  uncon- 
tradicted on  the  twenty  counts,  and 
on  the  twenty  counts  the  government 
has  made  out  its  case — that  the  rail- 
road company  did  in  fact  run  out  cars 
upon  which  the  safety  equipment  re- 
quired by  the  act  of  Congress  was 
in  such  condition  that  it  could  not 
have  protected  the  operatives  from 
the  danger  of  death  and  mutilation, 
from  which  this  benevolent  law  seeks 
to  protect  them.  It  is  also  in  evi- 
dence, while  the  equipment  was  thus 
ineffective,  that  the  slightest  effort  to 
repair  the  defects  would  have  reme- 
died them,  and  danger  to  life  and 
limb  would  have  been  avoided.  If 
the  court  neglects  to  enforce  the  great 
purpose  which  moves  the  framers  of 
our  laws  to  protect  the  people  from 
the  negligence  or  indifference  of  those 
in  control  of  the  powerful  and  danger- 


ous engines  of  modern  transporta- 
tion, the  benefits  of  those  laws  will  be 
lost  to  the  public  for  the  present 
time,  and  possibly  for  the  future. 
But,  if  the  courts  and  the  juries  do 
their  duty,  the  officers  of  the  cor- 
porations, when  they  find  there  is  a 
penalty  which  will  be  enforced,  will 
very  soon  begin  to  respect  the  law, 
and  hundreds  of  thousands  who  now 
labor  in  peril,  or  languish  as  the  result 
of  preventable  wounds — the  mashing 
and  grinding  of  bones  of  the  well  and 
strong — will  live  out  the  normal 
period  of  their  lives. 

"As  I  understand,  there  has  been 
a  wonderful  decrease  in  such  mu- 
tilations and  in  such  deaths  since  this 
law  went  into  effect.  The  almost 
incredible  dangers  to  which  we  are 
exposed  may  be  realized  when  I  tell 
you  that  it.  is  stated  that  our  country 
suffers  in  loss  of  life  and  limb  every 
year  as  much  as  the  Northern  and 
Southern  armies  lost  in  killed  and 
wounded  on  the  bloody  field  of  Gettys- 
burg. Now  what  would  be  the  effect 
upon  the  minds  of  the  people  through- 
out the  land  if  they  knew  that  in 
the  process  of  one  business,  that  at 
one  place  each  year,  would  meet  con- 
tending forces  that  would  put  to 
death  at  once  as  many  people  as  were 
killed  and  wounded  at  Gettysburg? 
Why,  men  the  world  around  would  be 
shocked  in  every  fiber  of  our  natures. 
Yet  such  are  the  facts;  those  are  the 


500  FEDERAL  SAFETY  APPLIANCE  ACT. 

held  in  the  Seventh  Circuit  that  the  court  has  no  power  to 
direct  a  verdict  in  favor  of  the  government  ;^-*  but  the  reason 
of  the  case  does  not  commend  itself.  No  reference  is  made 
to  the  decision  of  the  Supreme  Court  from  which  a  quota- 
tion is  made  above. 

§  327.  Amount  of  penalty. — A  railroad  company  haul- 
ing cars  not  equipped  as  the  statute  requires  is  liable  to  a 
penalty  of  $100  for  each  car  so  hauled.^^  And  for  hauling 
a  train  of  cars  not  properly  equipped  with  air  brakes  there 
can  be  a  recovery  of  a  penalty  of  $100  for  each  car  in  the 
train  not  equipped  with  air  brakes.^*  "The  penalty  recov- 
ered is  not  money  coming  to  the  government  as  something 
that  is  its  own;  nor  money,  a  part  of  which  is  the  govern- 
ment's own,  as  in  the  violation  of  revenue  statutes;  nor 
money  coming  to  the  government  in  the  exercise  of  its 
power  patriae  parens,  for  the  protection  of  a  class,  but  is  the 
punishment  that  the  government,  in  its  capacity  as  protector 
of  society,  inflicts  upon  the  carrier  who  has  violated  the 
protection  measure  thus  provided — the  fine  collected  going 
into  the  treasury  of  the  government  simply  because  it  must 

results   these   laws   are   intended   to  See    also    Proctor    &    Lohman    v. 

protect.     It  is  a  great  law;  it  is  a  People,   24   111.   App.   599;   State   v. 

benign  law;  it  is  intended  to  protect  as  Kansas  City,  Ft.  S.  &  M.  R.  Co.  70 

fearless  and  as  worthy,  if  sometimes  Mo.  App.  634;  Hitchcock  v.  Munger, 

careless  class  of  our  people,  careless  15  N.  H.  97,  and  People  v.  Briggs, 

because  they  are  always  in  the  pres-  114  N.  Y.  56;  20  N.  E.  820. 

ence  of  danger,   as   any   nation   can  '-^  Atchison,  T.  &   S.  F.   Ry.  Co. 

produce.     The  defendant  will  not  be  v.  United  States,   172  Fed.   194;  96 

permitted  here  to  whittle  down  these  C.  C.  A.  646. 

laws,  or  to  defeat  them  by  unneces-  '^  United   States  v.   Chicago,   etc., 

sary  technicalities.  R.   Co.   162  Fed.   Rep.  775;  United 

"These    observations    are   perhaps  States  v.  Atlantic  Coast  Line  R.  Co. 

not  essential  to  this  case.     They  are  (Appendix  G);   Atlantic   Coast  Line 

merely  the  views  of  the  court.    What  R.  Co.  v.  United  States,  168  Fed.  Rep. 

is  essential,  though,  is  that  I  direct  175    (decided    March    1,    1909);    St. 

a  verdict  for  the  plaintiff  for  the  full  Louis  S.  W.  Ily.  Co.  v.  United  States, 

amount    sued    for."      United    States  183  Fed.  770;  St.  Louis  S.  W.  Ry. 

v.   Atlantic  Coast  Line  R.   Co.   182  Co.  v.  United  States,  183  Fed.  770; 

Fed.  284.  106  C.  C.  A.  136;  United  States  v. 

This  case  is  mentioned  in  Calves-  St.  Louis  S.  W.  Ry.  Co.  184  Fed.  28; 

ton,  H.  &  S.  A.  R.  Co.  183  Fed.  579;  106  C.  C.  A.  230,  contra. 

105  C.  C.  A.  422,  where  a  case  was  '*  United   States  v.   Chicago,   etc., 

affirmed  in  which  a  verdict  had  been  R.  Co.  162  Fed.  Rep.  775. 
directed. 


ACTION  TO  RECOVER  PENALTY.  50I 

go  somewhere,  and,  as  in  other  criminal  cases,  there  is  no 
other  appropriate  place  to  direct  it."^^^ 

§  328.  Penalty  for  failure  to  equip  with  grabirons. — The 
statute  of  1893  makes  it  an  offense  "to  use  any  car  in  inter- 
state commerce  that  is  not  provided  with  secure  grabirons 
or  handholds  in  the  ends  and  sides  of  each  car  for  greater 
safety  to  men  in  coupling  and  uncoupling  ears."  A  penalty 
is  prescribed  for  "using  any  locomotive  engine,  running  any 
train,  or  hauling  or  permitting  to  be  hauled  or  used  on  its 
line  any  car  in  violation  of  any  of  the  provisions"  of  the 
statute.  A  railroad  was  charged  by  the  government  to 
have  hauled  in  a  train  on  a  certain  day  a  car  not  provided 
with  a  grabiron  or  handhold  such  as  the  law  requires.  The 
question  arose  whether  or  not  a  stoppage  of  the  car  in  the 
journey  constituted  one  or  two  oft'enses.  Upon  that  point 
the  court  charged  the  jury  as  follows: 

"The  government  claims  here  that  it  has  proved  to  you 
by  a  preponderance  of  the  evidence  not  only  one  violation 
of  the  statute,  but  two.  Now,  on  that  point,  gentlemen, 
you  will  consider  whether  or  not  this  car,  in  the  first  place, 
was  unprovided  with  grabirons  or  handholds,  as  it  should 
have  been,  and,  in  the  second  place,  whether  it  was  moved 
by  this  railroad  in  more  than  one  train.  Let  us  suppose 
that  you  have  found  that  that  car  was  on  a  given  day  not 
properly  provided  with  grabirons  and  handholds  as  the 
statute  requires.  Let  us  suppose  that  that  car  was  at  the 
time  being  moved  in  a  train.  Let  us  suppose  that  that  train 
stopped  for  some  purpose,  no  matter  what,  for  a  while,  and, 
after  having  so  stopped  for  a  certain  time,  started  up  and 
went  on  again.  Now,  in  a  supposed  case  like  that,  my  in- 
struction to  you  would  be  that  there  were  not  two  viola- 
tions of  the  law,  but  only  one,  because  the  car  was  all 
the  time  being  moved  in  the  same  train.  I  should  instruct 
you,  gentlemen,  that,  so  long  as  the  car  is  being  all  the 

14a  Atchison,  T.  &  S.  F.  Rv.  Co.  United  States  v.  Chicago,  R.  I.  & 
V.    United    States,    172    Fed.*  194,       P.  Ry.  Co.   173  Fed.  684. 


502 


FEDERAL   SAFETY   APPLIANCE  ACT. 


time  moved  in  the  same  train,  it  makes  no  difference  that  it 
is  being  so  moved  on  two  different  days;  that  so  long  as 
the  ear  continues  being  moved  by  the  railroad  on  the  same 
train  it  makes  no  difference  that  September  19th  has  run 
out  and  September  20th  has  come  in ;  that  that  does  not 
make  two  distinct  violations  of  the  statute,  but  the  move- 
ment of  the  car  being,  though  on  those  two  different  days, 
all  the  time  in  one  train,  there  has  been  one  violation  of  the 
statute.  You  ^vill  consider  upon  the  evidence  to  which  you 
have  listened  whether  this  car  has  been  moved  in  more 
than  one  train.  If  you  so  find,  it  will  be  proper,  provided 
you  have  been  satisfied  by  a  preponderance  of  the  evidence 
that  it  was  being  so  moved  without  the  grabirons  and 
handholds  which  the  law  requires,  to  find  for  the  plaintiff 
both  on  the  first  count  and  on  the  fifth  count.  If,  on  the  other 
hand,  you  are  not  satisfied  by  a  preponderance  of  the 
evidence  that  the  car  was  moved  in  two  trains,  but  was  only 
so  moved  in  one,  that  both  on  September  19th  and  on  Sep- 
tember 20th  the  car  was  continued  all  the  time  in  one 
train,  you  should  then  find  for  the  plaintiff  only  on  one  of 
those  counts,  either  the  first  or  fifth,  but  you  should  not 
find  for  the  plaintiff  on  both  of  them.^^  In  regard  to  what 
makes  the  trains,  by  'train'  I  understand  one  aggregation 
of  ears  drawn  by  the  same  engine,  and,  if  the  engine  is 
changed,  I  understand  there  is  a  different  train.  "^'^  The 
purpose  of  requiring  grabirons  or  handholds  to  be  placed  at 
the  end  of  the  cars  is  to  afford  greater  security  for  em- 
ployees when  they  are  in  the  act  of  coupling  or  uncoupling 
cars.^^  They  must  be  placed  at  the  ends  and  sides  of  all 
cars  to  which  the  statute  applies  ;^^  and  the  maintenance  of 

"  These  two  counts  related  to  the  state  the  engine,  caboose  and  train 

same  unequipped  car.  crew  were  changed.    United  States  v. 

'8  United   States  v.   Boston  &  M.  Chicago  Great  Western  Ry.  Co.  162 

R.  Co.  1(J8  Fed.  148.  Fed.  775. 

It   has   been    held   that   a   freight  "  Dawson  v.  Chicago,  R.  I.  &  P. 

train  scheduled  to  run  regularly  be-  Ry.  Co.  114  Fed.  870. 

tween  points  in  different  states  is  a  '^  United  States  v.  Chicago  &  N. 

single  train  throughout  such  run  and  W.    Ry.    Co.    157    Fed.    610;   United 

at  all  times  subject  to  the  act,  al-  States  v.  Baltimore  &  Ohio  R.  Co. 

though  some  of  the  cars  composing  bS4   Fed.   94;    Soutliern  ^Ry.    Co.    v. 

it    may    have    Ijeen    left    and    others  Railroad   Commission,    179   Ind.   23; 

tak(-n    on   at  different   stations,    and  100  N.  E.  337. 
although    after   entering   the   second 


ACTION  TO  RECOVER  PENALTY.  503 

only  one  handhold  on  each  side  of  the  car  is  not  a  com- 
pliance with  the  statute/''  The  necessity  of  handholds  on 
passenger  cars  is  not  obviated  by  the  presence  thereon  of 
air,  steara,  or  signal  hose,  coupling  chains,  handbrake  shafts, 
or  other  appliances  affording  some  measure  of  security  to 
employees  while  coupling  and  uncoupling  cars;-"  nor  is 
their  necessity  on  sides  near  the  rear  ends  of  tenders  ob- 
viated by  the  fact  that  uncoupling  levers  extend  practically 
across  the  rear  ends  of  the  cars,  in  such  a  position  and  of 
such  a  character  as  to  serve  as  handholds,  unless  it  is  shown 
by  the  defendant  that  handholds,  if  applied,  would  not  con- 
tribute to  the  greater  security  of  employees  in  coupling  and 
uncoupling  cars.-^  The  determination  of  what  is  and  what 
is  not  a  handhold  within  the  provisions  of  the  statute  is 
within  the  province  of  the  jury.^-  The  competency  of  open- 
ings in  the  buffers  on  the  ends  of  cars,  as  substitutes  for 
handholds,  is  a  question  for  the  jury,  and  not  a  proper  sub- 
ject for  expert  testimony,  where  they  are  subjected  to  the 
personal  inspection  of  the  jury.-^ 

§  329.  Writ  of  error. — From  an  adverse  judgment  the 
government  may  have  a  writ  of  error  from  the  District 
Court  to  the  Circuit  Court  of  Appeals.^^  But  if  the  judge 
of  the  District  Court  tries  the  case  without  a  jury,  his  de- 
cision cannot  be  reviewed  at  the  instance  of  the  government ; 
for  there  is  no  law  that  authorizes  him  to  try  the  case."^ 
When  damages  for  a  personal  injury  are  sought,  the  case 
may  be  reviewed  on  appeal.-*' 

"United   States   v.   Wabash   Ter-  Co.    167   Fed.   306;   Chicago,   B.   & 

minal  Ry.  Co.,  Nov.  3,  1909  (unre-  Q.    R.    Co.    v.    United    States,    220 

ported).  U.  S.  559;  31  Sup.  Ct.  612;  55  L.  Ed. 

20  United  States  v.  Norfolk  &  W.  582,  affirming  170  Fed.  556;  95  C.  C. 
R.  Co.  184  Fed.  99.  A.  556;  United  States  v.  Baltimore  & 

21  United  Stated  v.  Baltimore  &  O.  S.  W.  Ry.  Co.  159  Fed.  33,  38; 
Ohio  R.  Co.  184  Fed.  94.  86  C.  C.  A.  233.     Of  course,  the  de- 

--  United    States    v.    Baltimore    &  fendant  may  also  have  the  writ  when 

Ohio  R.  Co.,  January  IS,  1909  (un-  the  judgm.ent  is  adverse  to  it.     At- 

reported)  United  States  v.  Atchison,  lantic  Coast  Line  R.   Co.   168  Fed. 

T.  &  S.  Ry.  Co.,  Dec.  27,  1909  (un-  Rep.   175   (decided  March   1,   1909). 

reported)  United  States  v.  Spokane  "  United    States    v.    Louisville    & 

&  I.  E.  R.  Co.,  Oct.  31,  1912  (un-  N.  R.  Co.  167  Fed.  306.    See  Rogers 

reported).  v.  United  States,  141  U.  S.  548;  12 

«  Spokane  &  I.  E.  R.  Co.  v.  United  Sup.  Ct.  91 ;  35  L.  Ed.  853. 

States,  210  Fed.  243;  127  C.  C.  A.  61.  ^^  Chicago    Junction    Ry.    Co.    v. 

-'  United  States  v.  Illinois  Central  King,  222  U.  S.  222;  32  Sup.  Ct.  79; 

R.  Co.  170  Fed.  542  (Appendix  G);  56  L.  Ed.  — ,  affirming  169  Fed.  372; 

United  States  v.  Louisville  &  N.  R.  94  C.  C.  A.  652. 


rQ4  FEDERAL    SAFETY   APPLIANCE   ACT. 

§  330.  Twice  in  jeopardy. — The  constitutional  prohibi- 
tion that  no  one  shall  be  twice  put  in  jeopardy  has  no  appli- 
cation when  applied  to  the  assessment  of  a  penalty  under 
this  statute.^^ 

"  United  States  v.  Illinois  Central 
R.  Co.  170  Fed.  542. 


CHAPTER  XX. 
HOURS  OF  LABOR. 


SECTION 

331.     Statutory  provisions. 

Constitutionality  of  statute. 

Validity  of  state  statute  cover- 
ing the  subject  of  the  Federal 
statute. 

Power  of  Interstate  Commerce 
Commission  to  require  re- 
ports— Validity  of  statute. 

Remedial — Purpose  of  act. 

Liability  absolute — Permit — 
Voluntary  action  on  part  of 
employee. 

Statute    liberally    constructed. 

Analogous  to  other  remedial 
statutes. 

Inability  of  carrier  to  compel 
employees  to  rest. 

Scope  of  act. 

Employees  subject  to  act. 

"Other  employees"  as  used 
in  proviso  of  section  2. 

"On  duty"  and  "off  duty"  as 
defined  by  the  act. 

Casualty  or  unavoidable  acci- 
dent— Act  of  God. 

Period  of  consecutive  hours. 

Hours  of  employment — Inspec- 
tion of  engine  by  engineer. 

Deducting  time  lost  by  failure 
of  locomotive  to  get  up 
steam — Bad  coal. 

Deducting  time  lost  by  hot 
boxes. 

Time  lost  by  sidetracking — 
deducting. 

Time  train  delayed  cannot  be 
deducted  from  period  of 
time  of  service. 

Delay  in  starting  caused  by 
another  train. 


332. 
333 


334. 


335. 
336. 


337. 
338. 

339. 

340. 
341. 
342. 

343. 

344. 

345. 
346. 

347. 


348. 
349. 
350. 


351. 


SECTION 

352.  Commingling  of  intrastate  and 

interstate  duties. 

353.  Fireman     or     other     employee 

engaged  in  watching  engine. 

354.  "Consecutive" —  "Continuous" 

— Unbroken  intervals  of  time. 

355.  Proviso  to  section  2 — Towers — 

Places — Stations. 

356.  Orders. 

357.  Office  "continuously  operated" 

or     "operated     only     during 
the  daytime." 

358.  Period  as  used  in  statute. 

359.  Towermen    and    switchtenders 

using  telephones. 

360.  Operator  at  a  local  station. 

361.  Emergency — Week. 

362.  Proviso  of  section  3 — Casualty 

— Unavoidable  accident. 

363.  Terminal    as   used   in   act   de- 

fined. 

364.  Suspension     of     operation     of 

statute  for  a  given  trip. 

365.  Occurrence    of    conditions    or- 

dinarily to  be  expected. 
386.     Sudden  illness  of  operator. 

367.  Economical  reasons. 

368.  Action    to    recover    penalty — 

Civil  action — Pleadings. 

369.  Defense. 

369a.  Injury  to  employee — Right  of 
action. 

370.  Liability     to     passengers     for 

delay. 

371.  Penalty,  measure — Fixing. 

372.  Question  for  jury. 

373.  Reports    to    Interstate     Com- 

merce Commission. 


§  331.  Statutory  provisions. — It  is  unlawful  for  any- 
interstate  commerce  common  carrier,  its  officers  or  agents 
"to  require  or  permit  any  employee  subject  to"  the  statute 
on  hours  of  labor  for  railroad  men,  "to  be  or  remain  on 
duty  for  a  longer  period  than  sixteen  consecutive  hours," 
and  it  is  provided  that  "whenever  any  such  employee  of 
such  common  carrier  shall  have  been  continuously  on  duty 
for  sixteen  hours  he  shall  be  relieved  and  not  required  or 
permitted  again  to  go  on  duty  imtil  he  has  had  at  least  ten 
consecutive  hours  off  duty;  and  no  such  employee  who  has 
been  on  duty  sixteen  hours  in  the  aggregate  in  any  twenty- 
four-hour  period  shall  be  required  or  permitted  to  continue 
or  again  go  on  duty  without  having  had  at  least  eight  con- 
secutive hours  off  duty."  In  a  proviso  to  this  section,  it 
is  provided  that  in  the  case  of  an  "operator,  train  dis- 
patcher, or  other  employee,  who  by  the  use  of  the  telegraph 
or  telephone   dispatches   repeats,   transmits,   receives   or   de- 

505 


506  FEDERAL  SAFETY  APPLIANCE  ACT. 

livers  orders  pertaining  to  or  affecting  train  movements" 
he  cannot  be  "required  or  permitted  to  be  or  remain  on 
duty  for  a  longer  period  than  nine  hours  in  any  twenty- 
four-hour  period  in  all  towers,  offices,  places  and  stations 
continuously  operated  night  and  day,  nor  for  a  longer 
period  than  thirteen  hours  in  all  towers,  offices,  places  and 
stations,  operated  only  during  the  daytime,  except  one  of 
emergency."  In  case  of  such  an  emergency  the  employees 
just  named  in  the  proviso  "may  be  permitted  to  be  and 
remain  on  duty  for  four  additional  hours  in  a  twenty-four- 
hour  period  or  not  exceeding  three  days  in  any  week."^ 
The  penalty  cannot  exceed  five  hundred  dollars,  to  be 
recovered  in  an  action  brought  by  the  United  States  Dis- 
trict Attorney  of  the  district  within  one  year  from  the  date 
of  the  violation.  In  all  such  prosecutions  "the  common 
carrier  shall  be  deemed  to  have  had  knowledge  of  all  acts 
of  the  officers  and  agents."  "In  case  of  any  casualty  or 
unavoidable  accident  as  the  Act  of  God  or  where  the  delay 
was  the  result  of  a  cause  not  known  to  the  carrier  or  its 
officers  or  agent  in  charge  of  such  employee  at  the  time 
said  employee  left  a  terminal,  and  which  could  not  have 
been  foreseen"  the  statute  does  not  apply.  Nor  does  the 
statute  ' '  apply  to  the  crews  of  wrecking  or  relief  trains. ' '  ^ 

§  332.  Constitutionality  of  statute. — This  statute  has 
been  held  to  be  constitutional.'  "The  fundamental  ques- 
tion here,"  said  Justice  Hughes,  "is  whether  a  restriction 
upon  the  hours  of  labor  of  employees  who  are  connected 
with  the  movements  of  trains  in  interstate  transportation  is 
comprehended  within  this  sfihere  of  authorized  legislation. 
This  question  admits  of  but  one  answer.  The  length  of 
hours  of  service  has  direct  relation  to  the  efficiency  of  the 


iSee  Appendix  F.  407:   117  N".  W.  fiSfi;   "Baltimore  & 

2  Annondix:  F  ^-   ^-  C"-  ^'-   interstate  Commerce 

vppemux  1.  Commission.    221    U.    S.    012;    31 

"  LniU'd   States   v.    Illinois   Con-  _^    ^,  qto   04.  t 

X     ,  T,    r.      lor.  T^   1    ,-yfv    /-■!  •  Sup.  Ct.  621;  55  L.Ed. 878;  St. Louis, 

tral  R.  (o.  180  I-od.  UO;   Cl.icafro,  j    ^^^    ^   g     j^     ^o.   v.    McWhirter, 

M.  &  St.  Paul  Ry.  Co.   136  Wis.  145  Ky.  427;  140  S.  W.  672. 


HOURS   OF   LABOR.  507 

human  agencies  upon  which  protection  to  life  and  property 
necessarily  depends.  This  has  been  repeatedly  emphasized 
in  official  reports  of  the  Interstate  Commerce  Commission, 
and  is  a  matter  so  plain  as  to  require  no  elaboration.  In 
its  power  suitably  to  provide  for  the  safety  of  employees 
and  travelers.  Congress  was  not  limited  to  the  enactment 
of  laws  relating  to  mechanical  appliances,  but  it  was  also 
competent  to  consider,  and  to  endeavor  to  reduce,  the 
dangers  incident  to  the  strain  of  excessive  hours  of  duty 
on  the  part  of  engineers,  conductors,  train  dispatchers,  teleg- 
raphers, and  other  persons  embraced  within  the  clause 
defined  by  the  act.  And  in  imposing  restrictions  having 
reasonable  relation  to  this  end  there  is  no  interference  with 
liberty  of  contract  as  guaranteed  by  the  Constitution.*  If, 
then,  it  be  assumed,  as  it  must  be,  that,  in  the  furtherance 
of  its  purpose.  Congress  can  limit  the  hours  of  labor  of 
employees  engaged  in  interstate  transportation,  it  follows 
that  this  power  cannot  be  defeated  either  by  prolonging 
the  period  of  service  through  other  requirements  of  the 
carriers,  or  by  the  commanding  of  duties  relating  to  inter- 
state and  intrastate  operations. ' '  ^  Nor  is  the  statute  void 
because  of  the  fact  that  many  of  the  interstate  employees 
are  also  employed  in  intrastate  transportation.  '^  Nor  do 
the  words  "except  in  case  of  emergency"  in  the  proviso 
to  section  two  make  the  application  of  the  act  so 
uncertain  as  to  destroy  its  validity,  even  though  the  proviso 
in  section  three,  limiting  the  effect  of  the  entire  act,  can 
be  said  to  include  everything  which  may  be  embraced  within 
the  term  "emergency."  "It  is  said  that  the  words  'except 
in  case  of  emergency'  make  the  application  of  the  act  so 

4  Citing  Chicago,  B.  &  Q.  E.  Co.  See  also  Black  v.  Charleston  &  W. 

V.  McGuire,  219  U.  S.  549;  31  Sup.  Si^^^;  ^o-  ^^  ^'  <?'  '^,'^^'  ^^  ^'r^' 

Ct.  259;   55  L.  Ed.  328.  ^30;  Kansas  City  Soutnern  Ry.  Co. 

-  T>  li.-  0   n,   -D    rt  T  i.  V.  Quiglev,  181  Fed.  190. 

o  Baltimore  &  0.  R   Co.  v.  Inter-  e^Baltiniore  &  O.  R.  Co.  v.  Inter- 
state   Commerce   Commission,    221  gt^te  Commerce  Commission,  supra. 
U.  S.  612:   31   Sup.  Ct.  621,  55  L. 
Ed.  878;   United  States  v.  Kansas 
City  Southern  Ry.  Co.  Appendix  G. 


508  FEDERAL  SAFETY  APPLIANCE  ACT. 

uncertain  as  to  destroy  its  validity,"  continues  Justice 
Hughes.  "But  this  argument  in  substance  denies  to  the 
legislature  the  power  to  use  a  generic  description,  and,  if 
pressed  to  its  logical  conclusion,  would  practically  nullify 
the  legislative  authority  by  making  it  essential  that  legis- 
lation should  define,  without  use  of  generic  terms,  all  the 
specific  instances  to  be  brought  within  it.  In  a  legal  sense 
there  is  no  uncertainty.  Congress,  by  an  appropriate  de- 
scription of  an  exceptional  class,  has  established  a  standard 
with  respect  to  which  cases  that  arise  must  be  adjudged. 
Nor  does  the  contention  gather  strength  from  the  broad 
scope  of  the  proviso  in  section  three,  for  if  the  latter,  in 
limiting  the  effect  of  the  entire  act,  could  be  said  to  include 
everything  that  may  be  embraced  wnthin  the  term  of 
'emergency,'  as  used  in  section  two,  this  would  be  merely  a 
duplication  w^hieh  would  not  invalidate  the  act."^  The 
classification  of  operators  in  the  act  is  not  unconstitutional.'* 

§  333.  Validity  of  state  statute  covering  the  subject  of 
the  Federal  statute. — Because  Congress  has  enacted  a  law 
upon  the  subject  limiting  the  number  of  hours  a  train  crew 
may  be  kept  at  Avork,  or  other  employee,  it  does  not  follow 
that  a  state  may  not  also  prescribe  rules  on  the  same  subject. 
Thus  a  statute  of  New  York  provided  that  any  corporation 
operating  a  line  of  railroad  "in  whole  or  in  part"  in  that 
state  should  not  "require  or  permit  any  telegraph  or  tele- 
phone operator  who  spaces  trains  by  the  use  of  the  tele- 
graph or  telephone  under  what  is  kno\ATi  and  termed  as 
the  'block  system,'  "  and  certain  other  persons  engaged  in 
the  management  of  trains,  "to  be  on  duty  more  than  eight 
hours  in  a  day  of  twenty-four  hours ; ' '  and  it  was  ' '  declared 
that  eight  hours  shall  constitute  a  day  of  employment  for  all 
laborers  or  employees  engaged  in  that  kind  of  labor"  above 
stated.  An  exception  was  made  in  these  "cases  of  extraordi- 
nary  emergency   caused  by   accident,   fire,   flood,   or  danger 

'  Baltimore  &  O.  R.  Co.  v.  Inter-  '•  United  States  v.  St.  Louis  S.  W. 

Btate  Commerce  Comini.ssion,  xupra.  Ry.  Co.  189  Fed.  954. 

The  act  i.s  not  invalid  on  account  The  Pennsylvania  statute  is  valid, 

of  ambiguity.      United  States  v.  St.  Commonwealth     v.    Casey,    43    Pa. 

Loui.s  S.  \V.  Ry.  Co.   1.S9  Fed.  9.")4.  Super.  Ct.  494. 


H0UB6   OP   LABOR.  509 

to  life  or  property."  It  was  limited  in  its  application  to 
those  parts  of  a  railroad  where  more  than  eight  regular 
passenger  trains  in  twenty-four  hours  pass  each  way,  but 
not  "where  twenty  freight  trains  pass  each  way  generally 
in  twenty-four  hours  notwithstanding  that  there  may  pass 
a  less  number  of  passenger  trains  than  eight  passenger 
trains  daily."  This  statute  was  attacked  upon  the  ground 
that  the  legislature  had  no  power  to  place  such  a  limitation 
on  the  right  of  a  railroad  to  keep  its  employees  on  duty ;  but 
the  court  held  that  the  argument  in  favor  of  the  attack 
was  untenable.  The  court  said:  "The  doctrines  that  the 
legislature  under  proper  circumstances  and  within  reason- 
able limits  may  exercise  its  police  power  in  the  regulation 
of  hours  and  conditions  of  labor  is  now  thoroughly  and 
broadly  established.  One  familiar  form  of  this  class  of  legis- 
lation is  that  which  has  for  its  object  the  promotion  of  the 
health  and  welfare  of  the  employee  as  especially  in  the  case 
of  women  and  children.  Another  class  seeks  to  protect  the 
safety  of  the  public  by  limiting  the  hours  of  labor  of  those 
who  are  in  control  of  dangerous  agencies  but  by  excessive 
periods  of  duty  they  become  fatigued  and  indifferent  and 
cause  accidents  leading  to  injuries  and  destruction  of  life. 
This  statute  comes  within  the  latter  class."  A  second 
attack  on  the  validity  of  the  statute  was  that  the  employee 
to  whom  it  applied  "being  in  part  engaged  in  forwarding 
interstate  commerce,  Congress  had  the  superior  power  to 
regulate  his  hours  of  labor,  and  that  it  had  done  this  by 
legislation  which  barred  or  superseded  the  state  legisla- 
tion." The  court  also  held  this  attack  not  well  taken,  say- 
ing that  "within  the  authority  of  those  cases,®  and  of  what 


8  Gulf,   etc.,    Ry.    Co.    v.    Hefley,  Sinnot  v.  Davenport,  22  How.  227 

158  U.  S.  98;  15  Sup.  Ct.  802;   39  16  L.  Ed.  243;   Smith  v.  Alabama 

L.  Ed.        ;   Missouri,  K.  &  T.  Ry.  124   U.    S.   465;    8   iSup.    Ct.   564 

Co.   V.   Haber,    169   U.   S.   613;    IS  31   L.   Ed.   508;    affirming  76  Ala 

Sup.   Ct.  488;    42  L.  Ed.  878;    af-  69;  Hennington  v.  Georgia,  163  U, 

firming  56  Kan.  694;  44  Pac.  632;  S.    299:    16   Sup.    Ct.    1086;    41    L, 

Eeid  V.  Colorado,   187   U.   S.    137;  Ed.    166-.    affirming    90    Ga.    396 

23   Sup.   Ct.   92;    47   L.   Ed    108;  17  S.  E.  1009  j   Gladson  v.  Minne 


510  FEDERAL   SAFETY   APPLIANCE   ACT. 

was  said  in  deciding  tliem,  it  may  be  held  that  where  Con- 
gress has  prescribed  a  general  minimum  limit  of  safety  ap- 
plicable to  average  conditions  throughout  the  country  in  the 
movement  of  interstate  traffic,  a  state  statute  does  not  tres- 
pass upon  forbidden  territory  and  become  obnoxious  be- 
cause, in  response  to  special  conditions  within  its  limits,  it 
has  raised  such  limit  of  safety.  There  is  no  conflict;  the 
state  has  simply  supplemented  the  action  of  the  Federal 
authorities.  It  is  the  same  as  if  Congress  had  enacted  that 
the  class  of  employees  named  might  be  employed  for  nine 
hours  or  less,  and  the  state  had  then  fixed  the  lesser  num- 
ber, which  was  left  open  by  the  Federal  statute.  The  form 
of  the  latter  fixing  the  outside  limit,  but  not  expressly  legal- 
izing employment  up  to  that  limit,  fairly  seems  to  have 
invited  and  to  have  left  the  subject  open  for  supplemental 
state  legislation  if  necessary.  Such  is  the  view  which  this 
court  has  taken  on  another  occasion  in  the  decision  of  a 
question  quite  identical  with  that  here  presented."^  But 
there  are  a  number  of  decisions  which  hold  state  legisla- 
tion on  the  subject  of  the  number  of  hours  that  employees 
may  be  kept  at  work  unconstitutional.'^" 

§  334.  Power  of  Interstate  Commerce  Commission  to  re- 
quire reports — Validity  of  statute. — By  section  four  of  this 
Act  it  is  made  the  duty  of  the  Interstate  Commerce  Com- 
mission to  enforce  the  provisions  of  this  statute,  and  all 
powers  granted  to  such  Commission  are  ''extended  to  it  in 

sota,   IGG  U.   S.  427;    17   Sup.   Ct.  686;     19    L.    R.    A.     (N.  S.)    326; 

627;  41  L.  Ed.  1004;  aHirmincir  57  State  v.  Missouri  Pacific  Rv.  Co. 

l\Iinn.  385;    59   N.  W.  487;    24  L.  222  Mo.  658:  HI  S.  W.  500;' State 

R.  A.  502.  V.  Texas  &  N.  O.  R.  Co.  (Tex.  Civ. 

9  People  V.   Erie  R.   Co.    108  X.  App.)     124    S.   W.    984;    Northern 

Y.  369;  91  N.  E.  840;  20  L.  R.  A.  Pac.  R.  Co.  v.  State,  32  U.  S.  Sup. 

(N.  S.)'  240;   reversing   135  N.  Y.  Ct.  Rep.  160.     See  State  v.  North- 

App.   Div.   767;    119   N.   Y.   Supp.  ern  Pacific  Rv.  Co.  36  Mont.  582; 

873;    Llovd   v.  North   Carolina   R.  93  Pac.  945;' 15  L.  R.  A.    (N.  S.) 

Co.   151   N.  C.  536;   66  S.  E.  604;  134;  and  State  v.  Northern  Pacific 

Railroad  Com.  v.  Texas  &  P.  Rv.  R.    Co.    53    Wash.    673;    102    Pac. 

Co.     (Tex.   Civ.    App.)     140    S.   W.  876,  as  to  lepishition  after  tlio  act 

829;  State  v.  Wabash  R.  Co.  (Mo.)  of  Cnnffress  was  enacted  and  before 

141    S.  W.  646.  it    applied    to    interstate    railway 

if>  State  v.  Chicapo.  M.  &  St.  P.  companies. 
Ry.  Co.  136  Wis.  407;    117  N.  W. 


HOURS   OF   LABOR.  511 

the  execution"  of  the  act.  Section  twenty  of  the  Interstate 
Commerce  Commission  Act  was  amended  in  1910,^^  so  as  to 
enable  it  "by  general  or  special  orders  to  require  said 
carriers,  or  any  of  them,  to  file  monthly  reports  of  earnings 
and  expenses,  and  to  file  periodical  or  special,  or  both 
periodical  and  special,  reports  concerning  any  matters  about 
which  the  Commission  is  authorized  or  required  by  this  or 
any  other  law  to  inquire  or  keep  itself  informed,  or  which 
it  is  required  to  enforce. "^^  Under  these  two  statutes  the 
Commission  can  by  order  require  reports  to  be  made  con- 
cerning the  hours  employees  are  required  to  perform  service. 
"To  enable  the  Commission  properly  to  perform  its  duty 
to  enforce  the  law,  it  is  necessary  that  it  should  have  full 
information  as  to  the  hours  of  service  exacted  of  the  em- 
ployees who  are  subject  to  the  provisions  of  the  statute, 
and  the  requirements  to  which  we  have  referred  are  appro- 
priate for  that  purpose,  and  are  comprehended  within  the 
power  of  the  Commission."  *  *  *  Nor  is  the  statute 
void  with  *  *  *  respect  to  those  reports  on  the  ground 
that  it  is  contrary  to  the  Fourth  Amendment  of  the  Con- 
stitution with  reference  to  unreasonable  search  and  sei- 
zure ;  nor  can  the  railway  company  plead  a  privilege  against 
self -crimination  under  the  Fifth  Amendment.^^  "With  re- 
spect to  the  officers,"  said  the  court,  "it  would  be  sufficient 
to  say  that  the  privilege  guaranteed  to  them  by  this  amend- 
ment is  a  personal  one,  which  cannot  be  asserted  on  their 
behalf  by  the  corporation.  But  the  transactions  to  which 
the  required  reports  relate  are  corporate  transactions,  sub- 
ject to  the  regulating  power  of  Congress.  And,  with  regard 
to  the  keeping  of  suitable  records  of  corporate  administra- 
tion,   and    the    making    of    reports    of    corporate    action, 

1136  Stat,  at  L.,  c.  309,  p.  556.  Fed.  496;    Hammond  Packing  Co. 

12  These  reports  must  be  under  v.  Arkansas,  (212  U.  S.  pp.  348, 
oath  "whenever  the  Commission  so  34D;  29  Sup.  Ct.  370;  53  L.  Ed. 
requires."  543,  544;  Wilson  v.  United  States, 

13  Citing  Hale  v.  Henkel,  201  U.  220  U.  'S.  614;  31  Sup.  Ct.  538; 
S.  pp.  74,  75,  665,  666;  26  Sup.  Ct.  55  L.  Ed.  610. 

370;   50  L.  Ed.  652;  affirming  139 


522  FEDERAL  SAFETY  APPLIANCE  ACT. 

■where  these  are  ordered  by  the  Commission,  the  officers 
of  the  corporation,  by  virtue  of  the  assumption  of  their 
duties  as  such,  are  bound  by  the  corporate  obligation,  and 
cannot  claim  a  personal  privilege  to  the  requirement."^* 
The  penalty  for  failure  to  report  is  $100  per  day  for  each 
and  every  day  the  carrier  has  made  default.^ 

§  335.  Remedial — Purpose  of  act. — The  act  is  remedial,^ 
its  purpose  being  to  promote  the  safety  of  employees  and 
the  traveling  public  by  prohibiting  hours  of  service  wliich 
presumably  result  in  impaired  efficiency  for  discharging 
their  important  duties.^  "It  was  passed  to  meet  a  condi- 
tion of  danger  incidental  to  the  working  of  railroad  em- 
ployees so  excessively  as  to  impair  their  strength  and  alert- 
ness."'* In  another  case  it  was  said:  "In  this  legislation 
Congress  had  in  view  the  many  serious  railroad  accidents 
caused  by  the  unfitness  for  duty  of  men  engaged  in  or  hav- 
ing to  do  with  the  movement  of  trains,  who  had  endured 
excessive  periods  of  continuous,  unbroken  service  without 
intervals  for  rest.  The  remedy  adopted  was  by  limiting 
the  maximum  of  the  hours  of  service  and  the  minimum  for 
the  intervals  betvreen.  It  was  futile  to  attempt  to  control 
the  employees  in  their  use  of  their  off  time ;  therefore,  as 
being  more  practical  and  efficient,  the  command  was  laid 
upon  and  confined  to  those  who  gave  them  employment  in 
their  regular  occupations."^ 

"  Baltimore    &    Ohio    R.    Co.    v.  United  States  v.  Southern  Pacific  Co. 

Interstate     Commerce     Commission,  209  Fed.  5G2;   United   States  v.  At- 

221  U.  S.  612;  31  Sup.  Ct.  621;  55  Ian  tic  Coast  Line   R.   Co.  211   Fed. 

L.  Ed.  878.  897;  127  C.  C.  A.  123;  San  Pedro,  C.  A. 

'  United  States  v.  Yazoo  &  M.  V.  &  S.  L.  R.  Co.  v.  United  States,  213 

R.   Co.   203   Fed.   159.    In  this  case  Fed.  326. 

it  is  said  no  matter  in  mitigation  as  a  ^  United  States  v.  Atlantic  Coast 

ground  for  reducing  the  penalty  can  Lino  R.  Co.  211  Fed.  897;  127  C.  C.  A. 

be  considered.  123. 

^  United    States    v.    Kansas    City  "'  United    States    v.    Kansas    Citj' 

Southern    Ry.    Co.    189    Fed.    471;  Southern  Ry.  Co.  202  Fed.  828;  121 

United  States  v.  Chicago,  M.  &  P.  C.  C.  A.  130. 

S.    Ry.   Co.    197    Fed.    624;   United  ^  San  Pedro,  L.  A.  &  S.  L.  R.  Co. 

States  V.  Kansas  City  Southern  Ry.  213  Fed.  326;  United  States  v.  Chi- 

Co.  202  Fed.  562;  121  C.  C.  A.  13(3;  cago,  M.  &  C.  S.  Ry.  Co.  197  Fed. 

United  States  v.  Great  Northern  Ry.  624;  LTnited  States  v.  Yazoo  &   INI. 

Co.  200  Fed.  838;  United  States  v.  V.  R.  Co.  203  Fed.  159;  United  States 

Missouri  Pacific  Ry.  Co.  203  Fed.  847;  v.  r,Iissouri,  K.  &  T.  Ry.  Co.  208  Fed. 


HOURS   OF   LABOR.  513 

§  336.  Liability  absolute — Permit — Voluntary  action  on 
part  of  employee. — The  statute  in  fixing  the  liability  of  the 
carrier  does  not  use  the  words  "knowingly"  or  "wiIfull3^" 
It  "is  made  liable  if  it  requires  or  permits  any  employee  to 
be  or  remains  on  duty  in  violation  of  stated  provisions." 
Cases  under  the  statute  fall  "within  that  class  where  pur- 
posely doing  a  thing  prohibited  by  statute  may  amount  to 
an  offense,  although  the  act  does  not  involve  turpitude  or 
moral  wrong.""  Reasonable  diligence  or  due  care  on  the 
carrier's  part  is  no  excuse;  for  the  statute  imposes  positive 
and  absolute  duties  upon  it.'^  Neither  the  lack  of  actual  con- 
temporaneous knowledge  on  the  part  of  a  carrier  that  the 
act  is  being  violated,  nor  its  previous  instructions  to  the 
contrary,  is  a  defense  to  a  prosecution  under  the  act.^  The 
exercise  of  discretion  on  the  part  of  the  employee,  in  con- 
tinuing on  duty  in  excess  of  sixteen  hours,  under  the  as- 
sumption that  he  can  reach  a  terminal  within  the  statutory 
period,  does  not  supersede  the  mandate  of  the  law.^  The 
word  "permit,"  as  used  in  the  act,  means  a  "failure  to 
prohibit  by  one  who  has  the  power  and  authority  to  do  so."^° 
The  carrier  is  chargeable  with  "knowledge  of  all  acts  of  all 
its  officers  and  agents. "^^  The  expression  "all  the  officers 
and  agents"  as  used  in  the  act,  is  not  restricted  to  the  car- 
rier's general  officers  and  agents;  and  in  this  respect  the  act 
is  more  than  declaratory  of  the  common  law.^- 

§  337.  Statute  liberally  construed. — This  statute  is  lib- 
erally construed.     "The  act  being  remedial,  for  the  pur- 

957;  St.  Louis,  I.  jNI.  &  S.  Ry.  Co.  Ed.  1179;  United  States  v.  Chicago, 

V.  McWhirter,  145  Ky.  427;  140  S.  M.  &  P.  S.  Ry.  Co.  195  Fed.  783; 

W.  672.  United  States  v.  Yazoo  &  M.  V.  R. 

« United    States    v.    Kansas    City  Co.   203   Fed.   159. 

Southern  Ry.  Co.  202  Fed.  828;  121  « United   States   v.   Oregon-W.   R. 

C.  C.  A.  136;  United  States  v.  Oregon-  &  N.  Co.  213  Fed.  688. 

W.  R.  &  Nav.  Cc.  218  Fed.  925.  «  United    States    v.    Kansas    Citv 

'United  States  v.  Oregon-V/.  R.  &  Southern  Ry.  Co.  202  Fed.  828;  121 

N.  Co.  213  Fed.  688;  United  States  CCA.  136. 

V.    Kansas   City   Southern    Ry.    Co.  "  United  St.ates  v.  Oregon-W.  R. 

202   Fed.    828;    121    C   C   A.    136;  &  N.  Co.  213  Fed.  688. 

St.   Louis,   I.   M.   &   S.   Rv.   Co.   v.  'i  34  Stat,  at  L.  1415.  §  3. 

jMcWhirter,  145  Ky.  427;  140  S.  W.  '-  United  States  v.   Oregon-W.  R. 

672,  reversed  (but  not  on  this  point)  &  N.  Co.  213  Fed.  688. 
229  U.  S.  265;  33  Sup.  Ct.  858;  57  L. 


514  FEDERAL   SAFETY   APPLIANCE   ACT. 

pose  of  preventing  accidents  to  trains  and  consequent  in- 
juries to  passengers  and  employees,  it  is  the  duty  of  the 
court  to  construe  it  liberally  in  order  to  accomplish  the 
purpose  of  its  enactment/^  Experience  has  shown  that 
many  serious  accidents  to  trains,  causing  great  loss  of  life 
or  permanent  disabilities  to  passengers,  as  well  as  em- 
ployees, are  often  due  solely  to  the  fact  that  members  of  the 
train  crew  had  become  exhausted  by  reason  of  being  re- 
quired or  permitted  to  remain  on  duty  for  too  long  a  period, 
and  therefore  unable  to  give  the  care  and  attention  neces- 
sary for  the  safety  of  the  train.  To  prevent  accidents  from 
such  causes,  the  Congress  in  its  wisdom  enacted  this  statute 
prohibiting  railroads  not  only  from  requiring  any  employee 
subject  to  the  act  to  remain  on  duty  for  a  longer  period 
than  sixteen  consecutive  hours,  but  also  'permitting'  it,"^*^ 

§  338.     Analogous  to  other  remedial  statutes. — The  act  is 

analogous  to  the  Safety  Appliance  Acts/  but  is  distinguish- 
able from  the  Employers'  Liability  Acts,-  and  from  the 
twenty-eight  hour  law.^ 

§  339.    Inability  of  carriers  to  compel  employees  to  rest. 

— The  inability  of  carriers  to  compel  its  employees  to  rest 
during  their  intermissions  from  actual  service  is  so  remote 
a  contingency  as  not  to  merit  consideration.* 

§  340.  Scope  of  act. — The  provisions  of  the  act  apply  to 
all  common  carriers  by  railroad  in  the  District  of  Columbia, 
or  in  any  territory  of  the  United  States,  or  engaged  in  the 
movement  of  interstate  or  foreign  traffic,  and  to  all  em- 
ployees of  such  common  carriers  who  are  engaged  in  or 

'*  Citing  Johnson  v.  Southern  Pa-  ^  Baltimore  &  Ohio  R.  Co.  v.  Inter- 

cific  Co.   196  U.  S.   1;  25  Sup.  Ct.  state    Commerce    Commission,    221 

158;  49  L.  Ed.  363.  U.  S.  612;  31  Sup.  Ct.  621;  55  L. 

'8  United    States    v.    Kansas    City  Ed.  878. 

Southern  Ry.  Co.  202  Fed.  828;  121  ^  United    States    v.    Kansas    City 

C.  C.  A.  1.36;  United  States  v.  Kansas  Southern  Ry.  Co.  202  Fed.  828;  121 

City  Southern  Ry.  Co.  189  Fed.  471;  C.  C.  A.  136. 

United  States  v.  St.  Louis  S.  W.  Ry.  *  United  States  v.  Great  Northern 

Co.  1S9  Fed.  959.  Ry.  Co.  206  Fed.  838;  San  Pedro,  L. 

'  United    States    v.    Kansas    City  A.  &  S.  L.  R.  Co.  v.  United  States, 

Southern    Ry.    Co.    202    Fed.    828;  213  Fed.  326. 
121  C.  C.  A.  136. 


HOURS   OF   LABOR.  5]^5 

connected  with  the  movement  of  any  train  carrying  traffic 
in  such  district  or  territory,  or  carrying  interstate  or  for- 
eign traffic.  It  applies  also  to  all  railroads  subject  to  the 
provisions  of  the  act  to  regulate  commerce,  including  street 
railroads  when  engaged  in  interstate  commerce.  The  stat- 
ute declares  that  the  term  "railroad"  "shall  include  all 
bridges  or  ferries  used  or  operated  in  connection  with  any 
railroad,  and  also  all  the  road  used  by  any  common  carrier 
operating  a  railroad,  whether  owned  or  operated  under  a 
contract,  agreement,  or  lease.  "^  It  includes  a  receiver  op- 
erating a  railroad." 

§  341.  Employees  subject  to  act. — The  term  * '  employees '  * 
"as  used  in  this  act  shall  be  held  to  mean  persons  actually 
engaged  in  or  connected  with  the  movement  of  any  train.  "^ 
It  will  thus  be  seen  that  the  act  does  not  specify  the  classes 
of  employees  that  are  subject  to  its  provisions.  All  em- 
ployees engaged  in  or  connected  with  the  movement  of  any 
train  are  within  the  scope  of  the  act.^  An  employee,  working 
about  feed  yards  in  helping  to  unload,  care  for  and  reload 
stock  which  in  course  of  shipment  is  unloaded  for  food,  water 
and  rest,  is  not  within  the  act,  though  injured  while  riding 
on  a  switch  engine  from  one  part  of  the  yards  to  another.** 

§342.  "Other  employee"  as  used  in  proviso  of  section 
two. — The  proviso  to  section  two  provides  "that  no  operator, 
dispatcher,  or  other  employee  who  by  the  use  of  the  tele- 
graph or  telephone  dispatches,  reports,  transmits,  receives, 
or  delivers  orders  pertaining  to  or  affecting  train  move- 
ments shall  be  required  or  permitted  to  be  or  remain  on 
duty  for  a  longer  period  than  nine  hours  in  any  twenty-four 

534  Stat,  at  L.  1415,  §  1.  P.  Ry.  Co.  205  Fed.  96;  Baltimore  & 

^  United  States  v.  Ramsey,  19  Fed.  Ohio  R.  Co.  v.  Interstate  Commerce 

144;  116  C.  C.  A.  568.  Commission,  221  U.  S.  612;  31  Sup. 

'  34  Stat,  at  L.  1415,  §  1.  Ct.  621;  55  L.  Ed.  878.     (Employees 

^  United  States  v.  Missouri  Pacific  "are    those    engaged    in    the    trans- 

Ry.  Co.  206  Fed.  847;  United  States  portation  of  passengers  or  property 

V.  Atchison,  T.  &  S.  F.  Ry.  Co.  177  by  railroad.") 

Fed.  115;  San  Pedro,  L.  A.  &  S.  L.  « Schweig  v.  Chicago,  M.  &  St.  P. 

Ry.  Co.  V.  United  States,  213  Fed.  Ry.  Co.  216  Fed.  750. 

326;  Schweig  v.  Chicago,  M.  &  St. 


516  FEDERAL   SAFETY   APPLIANCE  ACT. 

hour  period  in  all  towers,  offices,  places  and  stations  con- 
tinuously operated  night  and  day,"  and  the  question  is  who 
is  meant  by  the  words  "other  employee."  The  construction 
placed  upon  these  words  is  that  they  "mean  an  employee 
engaged  in  the  same  character  of  service  as  a  train  dis- 
patcher or  operator,  who  by  the  use  of  the  telegraph  or  tele- 
phone performs  the  work  described"  in  this  proviso.  "In 
other  words.  Congress  intended  the  nine-hour  provision  to 
apply  to  employees  whose  primary  duty  was  to  dispatch, 
report,  transmit,  receive,  or  deliver  orders  pertaining  to  or 
affecting  train  movements.  "^° 

§  343.     "On  duty"  and  "off  duty"  as  defined  by  the  act. 

— "The  requirement  for  ten  consecutive  hours  off  duty  ap- 
plies only  to  such  employees  as  have  been  on  duty  for  sixteen 
consecutive  hours.  The  requirement  for  eight  consecu- 
tive hours  off  duty  applies  only  to  employees  who  have  not 
been  on  duty  sixteen  consecutive  hours,  but  who  have  been 
on  duty  sixteen  hours  in  the  aggregate  out  of  a  twenty-four- 
hour  period.  Such  twenty-four-hour  period  begins  at  the 
time  the  employee  first  goes  on  duty  after  having  had  at 
least  eight  consecutive  hours  off  duty.  The  term  'on  duty' 
includes  all  the  time  during  which  the  employee  is  perform- 
ing service,  or  is  held  responsible  for  performance  of  service. 
An  employee  goes  on  duty  at  the  time  he  begins  to  perform 
service  or  at  which  he  is  required  to  be  in  readiness  to  per- 
form service,  and  goes  'off  duty'  at  the  time  he  is  relieved 
from  service  and  from  responsibility  for  performance  of 
service.  "^^  Within  the  meaning  of  the  law,  an  employee 
goes  on  duty  at  the  time  he  reports  for  work,  as  required 
by  the  rules  of  the  railway  company,  and  begins  the  work 
of  looking  after  his  train  and  seeing  that  it  is  in  proper 
condition  for  road  service.  He  remains  on  duty  while  he  is 
in  t;liarge  of  his  Irjiin,  pciforining  service  in  and  about  the 
same,  01-  held  I'csponsible  for  the  performance  of  such  serv- 

'"  Missouri     Pacific     Ry.     Co.     v.       however,  United  States  v.  Houston, 
United   States,   211   Fed.   893.     See,       B.  <t  T.  Ry.  Co.  205  Fed.  344. 

"  Administrative  Ruling  No.  287-b. 


HOURS   OF   LABOR. 


517 


ice  should  the  occasion  therefor  arise.  He  is  not  off  duty 
until  he  is  relieved  from  all  responsibility  as  to  his  train  and 
becomes  his  own  free  agent  to  go  and  do  as  he  pleases.  Brief 
interruptions,  such  as  time  necessary  for  meals  while  on  the 
road,  meeting  trains,  waiting  for  orders,  delays  on  account 
of  congestion  of  traffic,  cannot  be  considered  as  time  off 
duty,  although  during  such  detention  no  active  service  what- 
ever may  be  required  of  him.  After  the  employee  in  train 
service  starts  on  his  trip,  it  cannot  be  said  that  he  is  off  duty, 
within  the  meaning  of  the  statute,  until  he  reaches  the  end 
of  his  run,  unless,  before  reaching  his  destination,  he  is 
released  from  all  service  in  connection  with  his  train,  or 
from  all  responsibility  therefor  should  the  occasion  arise, 
and  is  given  an  unqualified  bona  fide  release,  and  for  a  defi- 
nite and  substantial  period.^^  But  employees  "dead  head- 
ing" on  trains  and  not  required  to  perform,  and  not  held 
responsible  for  the  performance  of,  any  duty  or  service  in 
connection  with  the  movement  of  the  train  upon  which  they 
are  dead  heading,  are  not,  while  so  dead  heading,  "on  duty" 
as  that  phrase  is  used  in  the  statute.^^ 

§  344.     Casualty  or  unavoidable  accident — Act  of  God. — 

The  proviso  of  the  third  section  of  this  statute  provides 
that  the  provisions  of  the  statute  "shall  not  apply  in  any 
case  of  casualty  or  unavoidable  accident  or  the  act  of  God; 
nor  where  the  delay  was  the  result  of  a  cause  not  known 
to  the  carrier  or  to  officer  or  agent  in  charge  of  such  em- 
ployee at  the  time  said  employee  left  a  terminal,  and  which 
could  not  have  been  foreseen."  The  provisions  of  the  act 
do  "not  apply  to  the  crews  of  wrecking  or  relief  trains." 

"  United  States  v.  Chicago,  M.  &  appear    to    have    been    intelligently 

P.  S.  Ry.  Co.  197  Fed.  624;  United  chosen  and  used  in  the  composition 

States  V.  Denver  &  R.  G.  R.  Co.  197  of  the  statute  to  bar  all  excuses  for 

Fed.   629;   United   States   v.    Illinois  noncompliance  with  its  requirements 

Central  R.  Co.  180  Fed.  630.  by  any  pretext  of  misunderstanding 

"An  employee  is  on  duty  when  he  its     meaning."       United     States     v. 

is  at  his  post  in  obedience  to  rules  or  Chicago,  M.  &  P.  S.  Ry.  Co.  195  Fed. 

requirements    of    his    superior    and  783. 

ready  and  willing  to  work,  whether  ^^  Osborne  v.  Cincinnati,  N.  O.  & 

actually  at  work  or  waiting  for  orders  T.  P.  Ry.  Co.  15S  Ky.  176;  16-4  S.  W. 

or  for  the  removal  of  hindrances  for  818. 
any    cause.      The    words    'on    duty' 


518  FEDERAL   SAFETY   APPLIANCE  ACT. 

If  it  desires  to  avail  itself  of  the  provisions  of  this  pro- 
viso, a  defendant  railway  company  must  bring  itself  strictly 
within  the  latter  as  well  as  its  reason  of  such  provisions  in 
order  to  escape  the  penalty  provided  in  the  act.  An  act  of 
God  is  something  which  occurs  exclusively  by  the  violence 
of  nature,  at  least  an  act  of  nature  which  implies  an  entire 
exclusion  of  all  human  agencies.  Such  would  be  a  landslide 
blocking  a  railway  track,  extraordinary  floods,  storms  of 
unusual  violence,  sudden  tempests,  severe  frosts,  great 
droughts,  lightnings,  earthquakes,  sudden  deaths,  and  ill- 
nesses ;  but  not  a  rain  not  of  unusual  violence  and  its  probable 
results  in  softening  the  superficial  earth.  It  is  an  act  in 
which  no  man  has  an  agency  whatever.  It  must  be  such 
as  a  person  of  reasonable  prudence  and  foresight  could  not 
have  guarded  against.  A  casualty  is  an  act  which  proceeds 
from  an  unknown  cause  or  is  an  unusual  effect  of  a  known 
cause.  Some  of  the  authorities  hold  that  an  ''unavoidable 
accident"  is  synonymous  with  "act  of  God,"  but  the  better 
definition  is  that  it  must  be  an  inevitable  accident  which 
could  not  have  been  foreseen  and  prevented  by  the  exercise 
of  that  degree  of  diligence  which  reasonable  men  would 
exercise  under  like  conditions  and  without  any  fault  at- 
tributable to  the  party  sought  to  be  held  responsible.  It  is 
one  that  occurs  without  any  apparent  cause  and  without 
any  fault  attributable  to  anyone.  If  it  is  attributable  to  the 
negligence  of  any  person,  it  is  not  an  unavoidable  accident. 
It  must  be  an  accident  which  cannot  be  anticipated  or 
avoided  by  the  exercise  of  due  diligence  and  foresight.^^ 

17  United  States  v.  Kansas  City  crn  Car  Co.  139  U.  S  79;  11 
Southern  Ry.  Co.  189  Fed.  471,  cit-  Sup.  Ct.  490;  35  L.  Ed.  97;  Clyde 
ing  Gleason  v.  V.  M.  R.  Co.  140  v.  R.  &  D.  R.  Oo.  59  Fed.  394; 
U.  S.  435;  1  4Sup.  Ct.  859;  35  L.  Fish  v.  Clapman,  2  Ga.  349;  Dick- 
Ed.  458;  The  Majestic,  l&G  U.  S.  son  v.  United  States,  1  Brock  — ; 
375;  17  Sup.  Ct.  597;  41  L.  Ed.  Newport  News  &  N.  V.  Co.  v. 
1039;  Harrison  V.  Hughes  125  Fed.  United  States,  61  Fed.  488;  9  C. 
8f;0;  00  C.  C.  A.  442;  J'.iillnck  v.  C.  A.  579;  United  States  v.  .South- 
White  Star  ^Steamship  Co.  30  ern  Pac-ific  Co.  157  Fed.  459; 
Wash.  448;  70  V-dt:  1106;  Chi-  United  States  v.  Atchison,  T.  &  S. 
cago,  etc.,  R.  Co.  V.  Pullman  South-  F.  Ry.  Co.   160  Fed.   160;   United 


HOUltS   OF   LABOR.  519 

§  345.  Period  of  consecutive  hours. — The  number  of 
hours  in  twenty-four  hours  during  which  an  employee  may 
be  required  to  work  need  not  be  consecutive  hours ;  but  may 
be  divided  into  two  or  more  periods,  so  long  as  their  totality 
does  not  exceed  a  prohibitive  number  in  any  twenty-four 
hours.  Thus  where  a  telegraph  operator  dispatching, 
reporting,  transmitting,  receiving  and  delivering  orders  per- 
taining to  or  affecting  train  movements  in  interstate  com- 
merce was  required  to  be  on  duty  in  an  office,  continuously 
operated  day  and  night  from  6  :30  o  'clock  a.  m.  until  12 :00 
o  'clock  noon,  and  then  from  3  :00  o  'clock  p.  m.  until  6 :30 
p.  m.,  making  in  all  nine  hours  actual  service,  but  twelve 
hours  from  the  beginning  until  the  end  thereof,  it  was  held 
that  the  railway  company  had  not  violated  the  statute.  In 
passing  on  the  case  the  court  said:  "The  contention  of  the 
Government  is,  that  while  in  neither  of  the  cases  above  men- 
tioned was  the  operator  required  or  permitted  to  remain 
on  duty  for  more  than  nine  hours  in  any  twenty-four  in  the 
aggregate,  such  service,  within  the  contemplation  of  the 
statute  either  is  to  be  divided  into  'two  periods,'  separated 
by  the  intermission  (for  which  the  statute  makes  no  provi- 
sion), or  is  to  be  considered  as  'one  period,'  including  the 
intermission,  which  would  make  it  a  period  of  twelve  hours. 
But  manifestly,  Congress  did  not  intend  that  an  intermis- 
sion of  three  hours,  in  the  middle  of  the  day,  should  be 
computed  as  a  part  of  the  employee's  service ;  for  the  statute 

States  V.  Union  Pacific  R.  Co.  160  It  is  error  to  charge  the  jury 

Fed.  65;   95  C.  C.  A.  433;   United  under    the    Ohio    statute    that,    if 

States   V.   Atlantic   Coast  Line   R.  the  train  was  delayed  by  an  acci- 

Oo.  173  Fed.  764;  OS  C.  C.  A.  110;  dent,  the  statute  has  no  application 

The  Olympia,  61  Fed.  120;  9  C.  C.  iinless  the  railroad  company  know- 

A    393 ;     Welles     v.     Clastles,     69  ing  that  the  crew  had  been  on  duty 

Mass.     325;      Dreyer     v.     People,  more  than  fifteen  consecutive  hours 

188  111.  40;   58  N.  E,  620;   Smith  could  have  reasonably  provided  in 

V.   Southern    Ry.    Co.    129   N.    C.  tlie  proper  operation  of  the  train 

374;   40  S.  E.   86;   Tays  v.  Echer,  other    servants    competent    to    re- 

6   Tex.   Civ.   App.    188;    24   S.   W.  lieve   the    crew.      Baltimore    &    0. 

954;    Crystal  Springs  Dist.   Co.  v.  Ry.    Co.   v.    Collins,   30   Ohio   Civ. 

Cox,  49  Fed.  556;   1  C.  C.  A.  365;  Ct.  App.  110. 
Black  v.  Charleston  &  W.  C.  Ry.  Co. 
87  S.  C.  241;  69  S.  E.  230. 


520  FEDERAL,  SAFETY  APPLIANCE  ACT. 

was  enacted  in  view  of  the  customs  of  the  land,  and  the 
customs  of  the  land  do  not  include  such  intermissions  as  a 
part  of  the  working  hours  of  employees.     The  position  of 
the  Government  is  therefore  reduced  to  its  contention  re- 
specting the  word  'period,' — that  'period'  is  'a  term,'  *a 
cycle,'   something   'continuous'   between   a   definite   begin- 
ning and  a  definite  end — whereby,  invoking  the  canon  of 
strict  construction  in  criminal  statutes,  the  period  was  a 
period  of  twelve  hours,  notwithstanding  the  intermission. 
"We  cannot  concur  in  this  view.     The  statute  was  passed 
with  custom  as  a  background.     According  to  custom,  nine 
hours'  work  unquestionably  means  nine  hours'  actual  em- 
ployment, "whether  broken  by  an  intermission  for  lunch  or 
on  account  of  some  other  occasion.     According  to  custom, 
too,  especially  in  railroading  in  the  new  western  states,  the 
actual  service  of  employees  is  divided,  necessarily  divided, 
throughout  the  day,  to  correspond  with   the   arrival   and 
departure  of  trains.     Certainly,  Congress  did  not  intend  to 
override  these  existing  customs;  making  it  necessary  either 
that  the  railroad  company  should  not   give  intermissions, 
or  that  the  employee  should  be  paid  notwithstanding  the 
intermissions;   and  making  it  necessary  at  many  stations 
(presumably  well  known  to   Congress)    that  the   railroad 
should    either   employ   a   different  telegraph   operator   for 
every  train  that  came  and  went  (trains  on  western  roads 
being  often  more  than  nine  hours  apart),  irrespective  of  the 
fact  that  the  actual  service  for  each  train  was  a  very  short 
period  of  time.     The  contention  of  the  Government  gives 
to  this  word  'period,'  all  things  considered,  a  highly  strained 
meaning.    Disregarding  a  meaning  so  strained,  and  reading 
the  word  in  connection  with  the  context,  and  in  the  light 
of  ordinary  custom,  we  are  clear  that  the  acts  proven  do  not 
constitute  an  offense  within  the  meaning  of  the  law.     And, 
if  it  be  objected  that  under  this  construction  of  the  law,  it 
would  bo  possible  for  the  railroad  company  to  require  its 
opf^rators  to  give  their  service  for  short  periods  at  short 
intervals,  say  every  alternate  hour,  or  an  hour  in  every  two 


HOURS   OK   LABOR.  521 

hours  and  a  half,  thus  so  spreading  his  actual  service  over 
the  twenty-four  hours  that  no  opportunity  v/ould  be  given 
for  real  recuperation,  the  answer  is  that  no  instance  of  such 
practice  has  been  brought  to  our  attention,  and  no  such 
instance  is  likely,  which  accounts  for  the  fact  that  no  pro- 
vision in  the  act  is  made  for  such  instances.  Wlien  such 
practice  actually  occurs,  Congress  will  doubtless  provide  a 
cure.  A  further  answer  is  that  dispatchers,  being  'em- 
ployees,' come  under  the  protection  of  the  main  part  of 
the  section  which  gives  to  all  employees  'at  least  eight  con- 
secutive hours  off  duty'  in  each  day,  counting  from  some 
point  in  the  next  day. ' '  ^^ 

§  346.  Hours  of  employment — Inspection  of  eiig:ine  by 
engineer. — In  addition  to  the  hours  of  service  the  statute 
permits,  the  railroad  company  cannot  require  a  locomotive 
engineer  to  report  before  his  time  begins  to  run  and  to 
spend  a  certain  time — thirty  minutes — in  the  inspection  of 
his  locomotive.  "In  my  opinion,"  said  the  court,  "this  man 
was  on  duty,  within  the  meaning  of  the  act,  from  the  time 
he  went  there  and  commenced  to  supervise,  or  overlook, 
that  engine  in  preparation  for  the  trip.  It  does  not  make 
any  difference  whether  he  was  paid  for  this  time  or  not. 
That  was  the  time  his  work  and  the  strain  on  him  began. 
The  work  of  an  engineer,  or  employee  of  the  railroad,  begins 
when  under  the  rule  of  the  company  he  is  there  and  is  at 
work  in  connection  with  the  preparation  of  the  engine  for 
the  moving  of  the  train.  He  must  look  over  the  engine. 
He  must  see  that  it  is  oiled  up.  He  must  see  that  the  air 
brakes  are  all  right.  He  must  move  the  engine  down  over 
the  tracks  and  across  the  switches  to  connect  it  with  the 
train.  And  in  my  opinion  he  is  on  duty,  within  the  meaning 
of  the  act,  during  the   time  he  is  doing  these  things.     If 

18  Atchison,  T.  &  S.  F.  Ey.   Co.  12  o'clock  midnifrht  until  ,3  o'clock 

V.    United    States,    177    Fed.    114.  a.m.     Affirmed. '220  U.  S.  37;   30 

The   nightmen    worked    from    6:30  Sup.  Ct.   362;    55  L.   Ed.  361 ;"  St. 

P.M.  until  6:30  the  next  morninTr,  Louis,    I.   M.   &    S.    R.   Co.    v.   Me- 

with    three    hours    off    duty    from  Whirter,  145  Ky.  427-  140  S.  \V.  GiL'. 


522 


FEDERAL   SAFETY   APPLIANCE  ACT. 


he  goes  there  half  an  hour  before  the  time  to  start  to  do 
these  things,  during  the  time  he  is  there  doing  them  he  is 
on  duty. ' '  ^® 

§  347.  Deducting  time  lost  by  failure  of  locomotive  to 
get  up  steam — Bad  coal, — "The  time  lost  by  reason  of  the 
locomotive  getting  out  of  steam  or  cleaning  flues  could,  by 
the  exercise  of  reasonable  diligence,  certainly  have  been  an- 
ticipated and  prevented.  The  coal,  although  testified  to 
that  it  was  as  good  as  that  sold  to  other  railroads,  evidently 
was  not  a  good  steam  coal,  or  else  the  engine  must  not  have 
been  in  proper  condition.  In  fact  the  evidence  of  the  engi- 
neers of  defendant  shoAvs  that  the  engines  used  on  these 
trains  were  old  and  the  coal,  owing  to  a  good  deal  of  slack, 
would  cake  and  not  bum  as  freely  as  lump  coal.  If  fire 
will  give  out  frequently  as  the  evidence  in  this  case  shows, 
there  must  certainly  be  a  remedy  for  it.  What  would  be- 
come of  defendant's  through  passenger  trains  if  this  con- 
dition existed  on  their  locomotives'?  All  the  delays  shown 
by  the  evidence  to  have  occurred  could  have  been  prevented 
by  the  exercise  of  reasonable  diligence,  or  at  least  antici- 
pated, and  the  court  is  unable  to  find,  after  a  careful  read- 
ing of  all  the  testimony,  that  any  delays  were  caused  by 
casualty,  unavoidable  accident,  or  act  of  God,  or  by  any 
cause  which  could  not  have  been  foreseen. "-° 

§  348.  Deducting  time  lost  by  hot  boxes.  Hot  boxes  are 
not  unavoidable  or  unforeseen  accidents;  and  a  careful 
examination  of  them  before  starting  a  train  and  a  close 
investigation  at  stopping  points  will  reduce  accidents  of  that 
nature  to  a  minimum.  ''The  officials  of  defendant  could 
reasonably  anticipate  that  hot  boxes  are  likely  to  occur  on 
every  train,  more  especially  on  freight  trains  such  as  these 
were,  and  it  was  their  duty  to  take  that  fact,  as  well  as  the 
frequency  with  which  other  trains  would  be  met,  into  con- 

'»  United  States  v.  Illinois  Central  Ky.  176;  164  S.  W.  818;  United  States 

R.  Co.  180  Fed.  630;  United  States  v.  v.    Kansas   City    Southern    Ry.    Co. 

Denver  &  R.  G.  R.  Co.  197  Fed.  629  189  Fed.   471;  San   Pedro,   L.  A.   & 

(cited    with    apparent    approval    in  S.  L.  R.  Co.  v.  United  States,  213  Fed. 

Missouri.  K.  &  T.  Ry.  Co.  v.  United  326. 

States,  231   U.  S.   112;  34  Sup.  Ct.  -"United    States    v.    Kansas   City 

26;  .58  L.  Ed.  — .);  Osborne  v.  Cin-  Southern  Ry.  Co.  Appendix  G. 
cinnati,  N.  O.  &  T.  P.  Ry.  Co.  158 


HOURS   OF   LABOR. 


523 


sideration  in  establishing  the  division  or  terminal  yards 
and  determining  the  distance  for  them.  If  they  failed  to 
do  so  and  by  reason  of  such  failure  the  crews  on  its  trains 
are  required  to  remain  on  duty  for  a  longer  period  than 
sixteen  consecutive  hours  it  is  guilty  of  a  violation  of  this 
Act"" 

§  349.  Time  lost  by  side-tracking — Deducting. — Time  lost 
by  reason  of  side-tracking  to  give  passenger  or  superior 
freight  trains  the  right  of  way  cannot  be  deducted  from 
the  time  a  crew  may  be  kept  out  so  as  to  bring  such  time 
within  a  period  not  exceeding  sixteen  hours ;  for  it  is  no 
excuse  if  the  meeting  of  such  trains  could  have  been  antici- 
pated at  the  time  the  train  was  dispatched  from  the  starting 
point.-^ 

§  350.  Time  train  delayed  cannot  be  deducted  from  pe- 
riod of  time  of  service. — The  time  during  which  the  train 
is  delayed  cannot  be  included  within  the  time  the  crew  is 
on  duty.  There  is  nothing  in  the  statute  to  justify  a  con- 
struction that  will  allow  such  a  deduction.  "The  employee 
goes  on  duty  when  required  by  the  rules  of  the  employer 
to  report  for  duty,  and  if  for  any  reason  he  is  delayed, 
unless  it  is  for  some  cause  excepted  by  the  proviso  of  this 
Act  [in  section  3] ,  the  time  he  is  on  duty  runs.-^  Any  other 
construction  could,  to  a  great  extent,  defeat  the  object  of 
the  statute  to  prevent  employees  of  railroads  from  working 
for  so  many  hours  as  to  unfit  them  to  discharge  their  duties 
intelligently  and  with  safety  to  the  train.  It  may  and  does 
often  happen  frequently  that  trains  are  delayed  five  or  six 
hours  or  even  eight  hours.  If  the  employees  composing  the 
crew  on  that  train  are  required  to  remain  on  duty  during 
that  time  and  then  remain  on  duty  for  sixteen  hours  while 

"United   States   v.    Kansas   City  R.  G.  R.  Co.  197  Fed.  629;  United 

Southern  Ry.  Co.,  Appendix  G;  189  States  v.  Kansas  City  Southern  Ry. 

Fed.  471;  Washington,  P.  &  C.  Ry.  Co.  202  Fed.  828;  121  C.  C.  A.  136; 

Co.  V.  Magruder,  198  Fed.  218;  Great  Great  Northern   Ry.  Co.   v.   United 

Northern  Ry.  Co.  v.  United  States,  States,  211  Fed.  309;  127  C.  C.  A.  595; 

211  Fed.  309;  127  C.  C.  A.  595.  Missouri,  K.  &  T.  Ry.  Co.  v.  United 

"United    States    v.    Kansas   City  States,  231  U.  S.   112;  34  Sup.   Ct. 

Southern  Ry.  Co.  189  Fed.  471,  Ap-  26;  58  L.  Ed.  — . 

pendix   G;    citing   United    States   v.  ^^(^jjijng  United   States  v.  Illinois 

Southern  Pacific  Co.   157   Fed.   459.  Central  R.  Co.  180  Fed.  630. 
See  also  United  States  v.  Denver  & 


524  FEDERAL  SAFETY  APPLIANCE  ACT. 

the  train  is  being  operated,  would  they  be  in  physical  con- 
dition to  manage  that  train  with  safety?"-* 

§  351.  Delay  in  starting  caused  by  another  train. — Delay 
in  starting  caused  by  reason  of  the  fact  that  another  train 
is  late  is  no  excuse  with  the  meaning  of  the  proviso  to 
section  three.  It  is  not  an  unavoidable  delay  by  which  the 
keeping  of  trainmen  on  duty  longer  than  the  statute  allows 
which  will  excuse  a  railway  company.  "That  was  a  mat- 
ter," it  was  said  in  one  case,  "which  was  known  to  the  car- 
rier or  its  officers  in  charge  of  the  employees  at  the  time  they 
left  the  terminal  and  they  knew  that  it  would  cause  delay  in 
the  employees  getting  off  duty.  There  is  nothing  unforeseen 
in  this."-^  The  delay  of  the  departure  of  a  circus  train 
W'hich  circumstances  required  should  be  loaded  on  the  main 
line,  due  to  the  act  of  the  circus  company's  intoxicated 
employees  running  a  wagon  off  a  flat  car,  was  held  to  be  an 
ordinary  incident  which  furnished  neither  justification  nor 
excuse  for  a  violation  of  the  act.-*' 

§  352.     Commingling  of  intrastate  and  interstate  duties. 

— The  application  of  the  act  to  employees  otherwise  within 
its  terms  can  not  be  evaded  by  a  commingling  of  their 
duties  with  respect  to  interstate  and  intrastate  operations. 
Thus  ]\Ir.  Justice  Hughes  has  said  in  answer  to  the  claim 
that  that  part  of  the  time  the  employee  was  engaged  in 
intrastate  traffic,  though  mingled  with  interstate  traffic, 
should  not  be  counted  in  determining  how  long  the  em- 
ployee was  kept  on  duty:  "But  the  argument  undoubtedly 
involves  the  consideration  that  the  interstate  and  intrastate 
operations  of  interstate  carriers  are  so  interwoven  that  it  is 
utterly  impracticable  for  them  to  divide  their  employees  in 
such  manner  that  the  duties  of  those  who  are  engaged  in 

'*  United    States   v.    Kansas    City  ""  United  States  v.  Chicago  &  N. 

Southern  Ry.  Co.,  Appendix  G.  W.  Ry.  Co.  219  Fed.  342.     But  see 

2^  United    States   v.    Kansas    City  United    States    v.    Northern    Pacific 

Southern     Ry.     Co.,     Appendix     G;  R.  Co.  215  Fed.  64. 
United  States  v.  Chicago  &  N.  W. 
Ry.  Co.  219  Fed.  342. 


HOURS   OF   LABOR.  525 

connection  with  interstate  commerce  shall  be  confined  to 
that  commerce  exclusively.  And  thus,  many  employees  who 
have  to  do  with  the  movement  of  trains  in  interstate  trans- 
portation are,  by  virtue  of  practical  necessity,  also  employed 
in  intrastate  transportation,  *  *  *  if^  then,  it  be  as- 
sumed, as  it  must  be,  that  in  the  furtherance  of  its  purpose 
Congress  can  limit  the  hours  of  labor  of  employees  engaged 
in  interstate  transportation,  it  follows  that  this  power  can 
not  be  defeated  either  by  prolonging  the  period  of  service 
through  other  requirements  of  the  carriers  or  by  the  com- 
mingling of  duties  relating  to  interstate  and  intrastate 
operations."" 

§  353.  Fireman  or  other  employee  engaged  in  watching 
engine. — A  fireman  or  other  employee  subject  to  the  act, 
Avhile  engaged  in  watching  an  engine,  is  on  duty  within  the 
purview  of  the  act.  "It  is  contended,"  said  Judge  Hook, 
"that  the  excess  of  service  here  was  of  another  kind,  and 
being  at  the  end  of  the  sixteen  hours  is  therefore  imma- 
terial, as  it  does  not  appear  when  thereafter  the  fireman 
returned  to  work.  That  is  too  narrow  a  view  of  the  legis- 
lation, since  it  ignores  the  effect  upon  their  efficiency  of 
excessive  hours  of  service  of  any  kind  without  rest.  But, 
taking  the  narrower  view,  it  cannot  be  seriously  doubted 
that  the  statute  would  be  violated  if  the  other  service  im- 
mediately preceded  the  sixteen  consecutive  hours  in  a  train 
movement.  The  attentiveness  of  mind  so  essential  to  safety 
in  transportation  might  be  as  effectively  impaired  by  loss 
of  rest  while  oiling  machinery  in  the  shops  or  attending  an 
engine  on  a  siding  as  while  serving  on  a  moving  train.  Like- 
wise, if  the  train  service  aggregating  sixteen  hours  in  a 
twenty-four-hour  period  were  divided  by  intervening  service 
of  another  kind.-^     If  this  were  not  so  the  requirements 

"-'  Baltimore    &    Ohio    R.    Co.    v.  233  U.  S.  671;  34  Sup.  Ct.  756;  58  L. 

Interstate     Commerce     Commission,  Ed.  1149;  State  v.  Chicago,  ]\I.  &  St. 

221  U.  S.  612;  31  Sup.  Ct.  621;  55  L.  P.  Ry.  Co.  136  Wis.  407;  117  N.  W. 

Ed.  878;  Northern  Pacific  Ry.  Co.  v.  686. 

State,  222  U.  S.  370;  32  Sup.  Ct.  160;  -'«  Citing  United  States  v.  Chicago, 

56  L.  Ed.  237 ;  Erie  R.  Co.  V.  New  York,  U.  &  P.  S.  Ry.  Co.  197  Fed.  624. 


526  FEDERAL   SAFETY  APPLIANCE  ACT. 

of  a  minimum  of  ten  hours'  relief  after  sixteen  consecutive 
hours  of  duty  and  of  but  eight  hours'  relief  after  an  aggre- 
gate of  sixteen  hours  of  duty  out  of  twenty-four  would 
often  work  inconsistently.  The  shorter  rest  might  follow 
the  longer  labor  if  the  employee  could  without  restraint  be 
shifted  in  his  work.  We  also  think  a  railroad  company  can 
not  lawfully  require  or  permit  an  employee,  within  the 
statute,  who  has  served  the  sixteen  hours  to  return  to  other 
duty  without  the  prescribed  relief.^^  The  ten-hour  and  eight- 
hour  periods  for  rest  were  proportioned  to  sixteen  hours 
of  duty,  not  to  sixteen  hours  of  one  kind  plus  an  indefinite 
number  of  another.  This  conclusion  makes  it  unnecessary 
to  consider  whether  a  fireman  who,  after  sixteen  consecu- 
tive hours  of  service  as  such,  watches  his  engine  on  a  siding 
and  keeps  it  in  a  state  of  preparedness  for  his  successor  is 
performing  a  duty  in  connection  with  the  movement  of  the 
train. "^°  This  has  been  held  in  other  cases  also.  "The 
act,"  said  Judge  Morrow,  "prohibits  any  common  carrier 
from  requiring  or  permitting  any  'employee'  to  be  and 
remain  on  duty  for  a  longer  period  than  sixteen  consecutive 
hours.  There  is  no  distinction  made  in  the  act  as  to  any 
particular  duty  or  duties  which  an  employee  may  be  per- 
forming during  the  whole  time,  or  any  period  of  the  time, 
he  is  on  duty.  In  this  case,  when  Burgen's  duties  were 
changed  from  those  of  fireman  to  those  of  engine  watch- 
man, he  continued  to  be  no  less  an  employee  of  the  railroad 
company.  In  other  words,  had  he  been  employed  as  an 
engine  watchman  during  the  entire  period  of  twenty-four 
consecutive  hours,  there  could  be  no  question  but  that  such 
employment  would  have  constituted  a  violation  of  the  act. 
The  fact  that  during  the  twenty-four-hour  period  he  was 
employed  for  sixteen  hours  as  fireman  and  for  eight  hours 
as  engine   watchman   does   not   lessen  the   offense.  "^^     Of 

'^Citing   United   States   v.    Great  ^' Great     Northern     Ry.     Co.     v. 

Northern   Ry.   Co.   206   Fed.   838.  United    States,    211    Fed.    309;    127 

="  San  Pedro,  L.  A.  &  S.  L.  R.  Co.  C.  C.  A.  595,  affirming  206  Fed.  838; 

V.     United     States,     213     Fed.     326.  Great   Northern   Ry.   Co.   v.   United 

Citing    T.^nited    States    v.     Missouri  States,  21S  Fed.  302;  Northern  Pacific 

Pacific  Ry.  Co.  206  Fed.  847.  Ry.  Co.  v.  United  States,  213  Fed. 


HOURS   OF   LABOR.  527 

course,  it  is  immaterial  whether  the  service  as  engine  watch- 
man precedes,  intervenes  or  succeeds  the  service  as  fireman, 
or  as  other  employee  subject  to  the  act.  "True,  the  viola- 
tion of  the  spirit  of  the  statute  is  more  apparent  in  such  a 
case,  where  the  service  as  watchman  precedes  the  service 
as  fireman,  than  where,  as  here,  it  follows  such  service,  hut 
the  difference  is  one  of  degree  only ;  and  the  courts  cannot 
with  nicety  distinguish  between  service  which  materially 
impairs  and  that  which  impairs  only  to  an  inappreciable 
extent  the  efficiency  of  a  trainman.  "^^ 

§354.  "Consecutive" — "Continuous" — Unbroken  inter- 
vals of  time. — Where  the  breaks  in  the  work  are  so  short 
as  not  to  allow  the  employee  to  gain  substantial  rest  and 
recuperation,  then  his  work  is  continuous,  notwithstanding 
the  breaks  or  intervals.  "The  purpose  of  the  statute  is 
plain,  and  it  must  be  so  construed  as  to  promote  its  policy. 
The  hours  of  service  of  railway  trainmen  are  long  at  best, 
leaving  only  eight  hours  for  rest  and  recreation,  and  if  this 
brief  period  can  be  broken  into  fragments  the  purpose  and 
policy  of  the  law  will  be  entirely  frustrated.  If  a  train 
crew  may  be  laid  off  for  an  hour  and  a  half  at  one  point 
to  suit  the  convenience  or  necessities  of  the  company,  it 
may  be  laid  off  for  a  like  period  at  another,  and  the  mem- 
bers of  the  crew  thus  wholly  deprived  of  any  substantial 
period  for  either  sleep  or  rest.  If  this  crew  had  not  been 
released  from  duty  at  Auburn,  the  members  would  have 
been  compelled  to  remain  idle  until  the  time  of  departure 
arrived,  and  the  release  for  the  brief  period  allowed  by  the 
company  permitted  them  to  do  little  else.  The  release  was 
of  no  benefit  to  the  crew  and  could  subserve  no  substantial 
purpose  except  to  obviate  the  penalty  imposed  by  law. 
Perhaps  it  cannot  be  said  as  a  matter  of  law  in  all  cases 
whether  a  release  from  duty  for  a  fixed  period  of  time  will 

577;     United     States     v.     Missouri  engine  watchmen,  see  United  States 

Pacific  Ry.  Co.  206  Fed.  847.  v.  Great  Northern  Ry.  Co.  206  Fed. 

^^  United  States  v.  Great  Northern  838,  and  United  States  v.   Missouri 

Ry.  Co.  206  Fed.  838.  Pacific  Ry.  Co.  206  Fed.  847. 

As  to  what  are  the  usual  duties  of 


528  FEDERAL,  SAFETY  APPLIANCE  ACT. 

or  will  not  be  sufficient  to  break  the  continuity  of  the  serv- 
ice. No  doubt  in  extreme  cases  the  court  may  declare  as 
a  matter  of  law  that  a  given  period  is  so  short  as  not  to 
break  the  continuity  of  the  service,  or  that  another  period 
is  so  long  as  to  break  the  continuity  of  the  service,  but 
between  these  extremes  there  is  a  twilight  zone  where  the 
question  becomes  a  mixed  one  of  law  and  fact."^^  And  in 
another  case  it  was  said:  "It  is  said  that  because  deceased 
had  left  his  engine  and  was  going  to  his  boarding  house,  he 
was  engaged  upon  a  personal  errand,  and  not  upon  the 
carrier's  business.  Assuming  (what  is  not  clear)  that  the 
evidence  fairly  tended  to  indicate  the  boardinghouse  as 
his  destination,  it  nevertheless  also  appears  that  deceased 
was  shortly  to  depart  upon  his  run,  having  just  prepared  his 
engine  for  the  purpose,  and  that  he  had  not  gone  beyond 
the  limits  of  the  railroad  yard  when  he  was  struck.  There 
is  nothing  to  indicate  that  this  brief  visit  to  the  boarding- 
house  was  at  all  out  of  the  ordinary,  or  was  inconsistent 
with  his  duty  to  his  employer.  It  seems  to  us  clear  that 
the  man  was  still  'on  duty,'  and  employed  in  commerce, 
notwithstanding  his  temporary  absence  from  the  locomo- 
tive engine."^*  A  respite  from  duty,  even  for  a  reasonable 
extended  interval,  does  not  break  the  continuity  of  service, 
unless  the  duration  of  the  interval  is  definitely  anticipated 
and  predetermined  at  its  inception.  "If  the  crew  had  been 
laid  off  for  a  definite  period  of  three  hours  at  a  terminal 
or  other  place  where  the  crew  might  rest,  such  lay-off  would 
no  doubt  break  the  continuity  of  the  service.  But  such 
was  not  the  case  here.  The  crew  was  laid  off  for  an  indefi- 
nite period,  awaiting  the  arrival  of  a  delayed  engine.  They 
did  not  know  at  what  moment  the  train  might  move,  and 
had  no  place  to  go  except  to  a  bunkhouse  or  remain  in  the 


="  United  States  v.  Northern  Pacific  72  S.  E.  858;  Missouri,  K.  &  T.  Ry. 

Ry.   Co.    213   Fed.   539;   Osborne   v.  Co.  v.  United  States,  231  U.  S.  112; 

Cincinnati,  N.  O.  &  T.  P.  Py.  Co.  34  Sup.  Ct.  2G;  58  L.  Ed. —;  Northern 

15S  Ky.  17G;  104  S.  W.  818.  Pacific    Ry.    Co.    v.    United    States, 

■■"  North  Carolina  R.  Co.  v.  Zach-  220     Fed.     108;     United     States    v. 

ary,  232  U.  S.  248;  .34  Sup.  Ct.  305;  Chicago  &  N.  W.  Ry.  Co.  212  Fed. 

58L.  Ed.  591,  reversing  150  N.  C.  496;  342  (going  to  meals). 


HOURS   OF   LABOR.  529 

caboose.  They  chose  the  latter  course.  This,  in  my  opinion, 
was  a  trifling  interruption."""'''  In  order  to  suspend  the 
operation  of  the  act,  the  release  from  service  must  be 
granted  in  good  faith,  at  a  time  and  place  and  under  cir- 
cumstances that  permit  of  rest  and  recuperation,  must  be 
definite  in  time,  and  must  be  predetermined  at  the  incep- 
tion of  such  period.  "If  it  appeared  to  the  company  that 
a  certain  train  would  probably  be  delayed  at  a  station  for 
a  certain  time,  by  reason  of  a  congested  condition  of  traffic 
or  on  account  of  having  to  cool  the  engine  by  hand,  and 
the  carrier  notified  the  employees  on  that  train  that  they 
were  released  for  a  certain  time,  which  was  approximately 
the  time  the  company  saw  they  would  be  delayed  at  that 
place,  and  the  only  reason  for  such  release  was  for  the 
purpose  of  extending  the  time  within  which  the  employees 
might  operate  their  train,  and  neither  the  purpose  nor  ef- 
fect of  the  release  was  to  afford  the  trainmen  any  rest,  the 
jury  would  be  warranted  in  finding  that  such  release  was 
not  bona  fide,  but  merely  a  subterfuge.  "^"^ 

55  United  States  v.  Chicago,  M.  &  argued  that  they  were  not  on  duty 

P.   S.   Ry.   Co.   197   Fed.   624,   cited  during  this  period,  and  that  if  it  be 

with  apparent  approval  in  Missouri,  deducted,  they  were  not  kept  more 

K.  &  T.  Ry.  Co.  V.  United  States,  than  16  hours.    But  they  were  under 

231  U.  S.  112;  34  Sup.  Ct.  26;  58  L.  orders,  liable  to  be  called  upon  at  any 

Ed.  — .  moment,    and   not   at   liberty   to   go 

In  the  case  just  quoted  from  there  away.     They  were  none  the  less  on 

was  a  layoff  from  30  to  45  minutes  duty    when    inactive.      Their    duty 

for  breakfast,  and  of  about  one  hour  was  to  stand  and  wait."     Missouri, 

each    for   the    midday    and    evening  K.  &  T.  Ry.  Co.  v.  United  States, 

meals;    and    this    was    held    not    to  231   U.  S.   112;  34  Sup.  Ct.  26;  58 

break  the  continuity  of  service.    The  L.  Ed.  — . 

same  was  true  where  there  was  an  ^^  United  States  v.  Northern  Pacific 

indefinite  layoff  of  three  hours  while  Co.  (unreported)  February  14,  1913; 

awaiting  the  arrival  of  a  helper  engine.  Northern  Pacific  Ry.  Co.  v.  United 

The  same  was  held  where  there  was  States,  220  Fed.  108. 
a  delay  of  55  minutes  on  a  side-  Where  an  engineer,  who  had  pre- 
track  while  waiting  for  a  train  to  pass.  viously  been  engaged  in  interstate 
United  States  v.  Denver  &  R.  G.  R.  commerce,  was  assigned  to  duty  on 
Co.  197  Fed.  629,  cited  with  apparent  an  engine  hauling  a  work  train  en- 
approval  in  Missouri,  K.  &  T.  Ry.  gaged  in  filling  a  bridge  on  the  de- 
Co.  V.  United  States,  231  U.  S.  112;  fendant's  interstate  line,  and  he  was 
34  Sup.  Ct.  26;  58  L.  Ed.  — .  wholly  engaged  in  such   service  for 

"One  of  the  delays  was  while  the  59  days,   during  which  he  was  per- 

engine   was   sent   off   for   water   and  mitted  to  remain  on  duty  continuous 

repairs.      In  the  meantime  the  men  for  more  than  16  hours,  it  was  held 

were   waiting,   doing  nothing.     It  is  that  the  act  had  not  been  violated. 


530  FEDERAL   SAFETY   APPLIANCE  ACT. 

§  355.    Proviso  to   section  2 — Towers — Places — Stations. 

— The  proviso  to  section  two  of  the  act  applies  to  all  offices 
in  which  train  orders  are  handled  affecting  the  movement 
of  interstate  traffic,  irrespective  of  the  number  or  the  ef- 
ficiency of  such  orders.^^  The  phrase  "towers,,  offices, 
places  and  stations"  mean  particular  and  definite  loca- 
tions. The  purpose  of  the  law  and  this  proviso  cannot 
be  avoided  by  erecting  offices,  stations,  depots,  or  buildings 
in  close  proximity  to  each  other  and  operating  from  one 
a  part  of  the  day  while  the  other  is  closed,  and  vice  versa.^^ 
This  proviso  classifies  "the  offices  in  which  telegraphic  op- 
erators engaged  in  handling  train  orders  worked  as  day 
offices  only  and  those  open  for  the  transaction  of  such  busi- 
ness during  both  the  day  and  night.  As  to  the  latter  class, 
it  limited  the  hours  of  service  of  such  operators  to  nine  out 
of  twenty-four.  As  to  the  former  class,  where  the  office  was 
open  for  business  only  during  the  daytime,  it  limited  the 
hours  of  service  of  such  operators  to  thirteen,  unless  in 
case  of  emergency  the  period  of  service  should  be  extended 
to  seventeen  hours  without  violating  the  statute."^''  "The 
terms  employed  are  plainly  intended  to  include  every  sort 
of  place  where  train  orders  are  handled,  however  infre- 
quently, by  telegraph  or  telephone.  There  is  nothing  to 
suggest  that  the  permitted  hours  on  duty,  whether  nine  or 
thirteen,  are  determined  by  the  number  of  train  orders 
handled,  if  they  are  handled  at  all,  or  by  the  proportion 
of  time  which  the  employee  spends  in  that  particular  ser- 
vice. Surely  the  descriptive  words  'towers,  offices,  places, 
and  stations,'  negative  any  intention  to  confine  the  nine- 
hour  limitation  to  those  offices,  however  designated,  in 
which  the  principal  work  of  the  operator  is  connected  with 
the  movement  of  trains.  In  short,  we  deem  it  beyond  dis- 
pute that  the  classification  of  an  office  is  fixed  by  the  length 


United  States  v.  Chicago,  M.  &  P.  ^s  Administration  Ruling  No.  287-f. 

S.  liy.  Co.  219  Fed.  032.  •■"'  United    States    v.    Missouri,    K. 

•"  United    States    v.    Atchison,    T.       &  T.  Ry.  Co.  208  Fed.  957. 
&  S.  F.  Hy.  Co.  220  U.  S.  37;  31  Sup. 
Ct.  302;  55  L.  Ed.  — . 


HOURS   OF   LABOR.  531 

of  time  it  is  kept  open,  and  not  in  the  least  by  the  nature 
of  the  duties  performed,  if  only  those  duties  include  the 
handling  of  train  orders  as  occasion  may  require.  "^'^ 

§356.  Orders. — The  term  "orders,"  as  used  in  the  act, 
includes  every  communication  of  information  or  instruction 
relative  to  the  movement  of  any  train.  It  is  not  restricted 
to  what  railway  companies  technically  call  "train  orders;" 
that  is,  such  orders  as  emanate  from  the  train  dispatcher's 
office  and  are  reduced  to  writing  and  handed  to  the  con- 
ductor and  engineer  of  a  train.  It  includes  telephone  or- 
ders from  towermen  to  towermen.  "Any  direction  or  com- 
munication by  telephone  or  telegraph  which  has  the  oper- 
ative effect  of  an  order  which  is  to  be  followed  and  obeyed 
by  the  employees  of  the  company  is  an  order  which  the  terms 
of  this  law  are  broad  enough  to  cover  and  the  spirit  of 
the  law  fully  covers.""  A  rule  of  a  railway  company  pro- 
vided that  if  a  train  was  held  over  thirty  minutes  at  a  sid- 
ing where  there  was  no  open  telephone  office  the  conductor 
should  report  to  the  dispatcher  for  orders,  using  a  telephone 
if  no  operator  available,  and  to  make  that  possible,  the 
company  had  installed  telephones  at  various  points  where 
no  telegraph  operators  were  employed  and  no  regular  sta- 
tions were  maintained ;  it  was  held  that  such  a  train  con- 
ductor using  the  telephone  pursuant  to  such  orders  did  not 
come  within  the  statute."*- 

§  357.  Office  "continuously  operated"  or  "operated  only 
during  the  daytime." — The  classification  of  an  office  as 
"continuously  operated"  or  "operated  only  during  the  day- 
time" is  determined  bj^  the  length  of  time  it  is  left  open, 
and  not  by  the  character  of  the  service  therein  performed, 
provided  only  that  such  service  comprehends  the  handling 

«» United  States  v.  Atlantic  Coast  Missouri  Pacific  Ry.  Co.  v.  United 

Line  R.  Co.  211  Fed.  897;  127  C.  C.  States,  211  Fed.  893;  127  C.  C.  A. 

A.  123.  123;   United   States   v.   Houston,   B. 

«  United  States  v.  Missouri  Pacific  &  T.  Ry.  Co.  205  Fed.  344. 

Ry.  Co.  (unreported),  but  affirmed  by  ^-United    States    v.    Chicago,    M. 

the    Circuit    Court    of    Appeals    in  &  P.  S.  Ry.  Co.  219  Fed.  1011. 


532  FEDERAL  SAFETY  APPLIANCE  ACT. 

of  train  orders  as  occasion  may  require.*^  An  office  is  ''con- 
tinually operated"  if  it  be  kept  open  for  such  a  number 
of  hours  in  the  aggregate  as  necessarily  to  include  a  ma- 
terial or  substantial  portion  of  the  night.  The  quoted 
phrase  applies  to  all  offices,  places,  and  stations  operated 
during  a  portion  of  the  day  and  a  portion  of  the  night  a 
total  of  more  than  thirteen  hours.  The  phrase  "operated 
only  during  the  daytime"  refers  to  stations  which  are  op- 
erated not  to  exceed  thirteen  hours  in  a  twenty-four-hour 
period,  and  is  not  considered  as  meaning  that  the  operator 
thereat  may  be  employed  only  during  the  daytime.^*  Triflng 
interruptions  do  not  break  the  continuity  of  operation  of 
an  office  otherwise  continuously  operated;  "and  it  is  pos- 
sible that  even  three  hours  by  night  and  three  hours  by  day 
would  not  exclude  the  office  from  all  operation  of  the  law, 
and  that  extent  defeat  what  we  believe  was  its  intent."*^ 
So  closing  the  office  four  times,  for  a  period  of  one  hour 
each,  during  a  twenty-four-hour  period  is  not  a  compliance 
with  the  statute.'"'  "It  is  contended  by  the  defendant," 
said  Judge  Pollock,  "as  the  ten  hours  of  service  performed 
by  its  operators  were  not  continuous,  but  were  broken  by 
the  intervention  of  one  hour,  and  as  the  office  was  not  open 
for  the  purpose  of  telegraphic  communications  regarding 
the  movement  of  trains  from  6 :00  a.  m.  until  8  :00  a.  m.  each 
day,  it  was  not  a  night  and  day  office,  within  the  meaning 
of  the  section  quoted.  That  is  to  say,  it  is  the  contention 
of  defendant  neither  the  hours  of  service  of  its  employees 
nor  the  operation  of  its  Coffeyville  office  was  so  continuous 
as  required  by  the  act  to  make  it  both  a  night  and  day  of- 
fice. I  am  of  the  opinion  on  both  authority  and  the  very 
reason  of  the  matter,  defendants  have  violated  the  act  as 
charged.  "^^ 


*^  United  States  v.  Atlantic  Coast  *^  United    States    v.    Atchison,    T. 

Line  R.  Co.  211  Fed.  897;  127  C.  C.  &  S.  F.  Ry.  Co.  220  U.  S.  37;  31  Sup. 

A.    123;   United   States   v.   Atchison,  Ct.  3()2;  55  L.  Ed.  — . 

T.  &  S.  F.  Ry.  Co.  177  Fed.  115.  "United  States  v.  St.  Louis  S.  W. 

**  Administration  Ruling  No.  2S7-K.  Ry.  Co.  189  Fed.  954. 

United  States  v.  Atlantic  Coast  Line  "  United  States  v.  Missouri,  K.  & 

K.  Co.  211  Fed.  897;  127  C.  C.  A.  123.  T.  Ry.  Co.  208  Fed.  957. 


HOURS   OF    LABOR.  533 

§  358.  Period  as  used  in  statute. — The  statute  limits  a 
train  dispatcher's  work  at  night  "for  a  longer  period  than 
nine  hours  in  any  twenty-four-hour  period,"  and  in  daytime 
"for  a  longer  period  than  thirteen  hours,"  in  certain  enu- 
merated places.  In  the  construction  of  these  classes  it  is 
held  that  an  operator  employed  for  six  hours  and  then, 
aften  an  interval  of  three,  for  an  additional  period  of  three 
hours,  is  not  on  duty  for  a  longer  period  than  nine  hours 
in  a  twenty-four-hour  period.^^  But  if  he  remains  in  the 
office  on  duty  in  a  continuously  operated  office  for  more 
than  nine  hours  in  a  twenty-four-hour  period,  it  is  imma- 
terial that  such  service  may  be  continuous.*^ 

§  359.  Towermen  and  switch  tenders  using  telephone. — 
Towermen  and  switch  tenders  w'ho  use  the  telephone  for 
the  communication  of  information  or  instructions  relative 
to  the  movement  of  trains  are  subject  to  the  proviso  of 
section  two  of  the  act.  This  provision  includes  all  em- 
ployees who,  by  the  use  of  an  electric  current,  handle  train 
orders  or  signals  which  control  the  movement  of  trains.^'^ 

§  360.  Operator  at  a  local  station. — The  service  of  an 
operator  at  a  local  station  is  clearly  within  the  purpose  of 
the  act  as  is  that  of  a  similar  employee  in  a  train  dis- 
patcher's office.^^ 

§  361.  Emergency — Week. — In  case  of  an  emergency  an 
operator,  train  dispatcher,  or  other  employee  who  by  the 
use  of  telegraph  or  telephone  dispatches,  reports,  transmits, 
receives,  or  delivers  orders  pertaining  to  or  affecting  train 
movements  cannot  remain  longer  than  certain  enumerated 


*^  United    States    v.    Atchison,    T.  s"  United    States    v.    Houston,    B. 

&  S.  F.   Ry.  Co.  220  U.  S.  37;  31  &  T.  Ry.  Co.  205  Fed.  344;  Missouri 

Sup.  Ct.  3G2;  55  L.  Ed.  — ,  affirming  Pacific  Ry.  Co.  v.  United  States,  211 

177    Fed.    114,    which    reversed    177  Fed.  893. 

Fed.  114.  5' United  States  v.  Atlantic  Coast 

«  United  States  v.  St.  Louis  S.  W.  Line  R.  Co.  211  Fed.  897;  127  C.  C. 

Ry.  Co.  189  Fed.  954;  United  States  A.  123. 
V.  Missouri,  K.  &  T.  Ry.  Co.  208  Fed. 
957. 


534  FEDERAL   SAFETY   APPLIANCE  ACT. 

periods  "except  in  case  of  an  emergency,"  when  they  may 
remain  ' '  on  duty  for  four  additional  hours  in  a  twenty-four- 
hour  period  or  not  exceeding  three  days  in  a  week."  This 
emergency  must  be  real  and  one  against  which  the  carrier 
cannot  guard.  Congress  used  the  word  "emergency"  in 
its  ordinary  and  popular  sense  with  reference  to  the  busi- 
ness of  dispatching  trains  when  conducted  in  the  exercise 
of  the  ordinary  care  required  in  such  business.^-  The  word 
"week"  means  a  period  of  seven  days  and  not  necessarily 
a  calendar  week;  and  the  statute  is  not  violated  if  no  em- 
ployee worked  overtime  more  than  three  days  out  of  seven.^^ 

§  362.  Provisos  of  section  3 — Casualty — Unavoidable 
accident. — The  act  does  not  apply  "in  any  case  of  casualty 
or  unavoidable  accident  or  act  of  God ;  nor  where  the  delay 
was  the  result  of  a  cause  not  known  to  the  carrier  or  its 
officer  or  agent  in  charge  of  such  employee  at  the  time  said 
employee  left  a  terminal,  and  which  could  not  have  been 
foreseen."  These  provisions  are  applicable  to  the  service 
of  operators  and  other  employees  handling  train  orders  as 
fully  as  to  employees  in  train  service.^*  Of  course  a  "cas- 
ualty" is  an  act  which  proceeds  from  an  unknown  cause, 
or  it  is  an  unusual  effect  of  a  known  cause,^^  and  an  "un- 
avoidable accident"  is  an  "inevitable  accident  which  could 
not  have  been  foreseen  and  prevented  by  the  exercise  of 
that  degree  of  diligence  which  reasonable  men  would  ex- 
ercise under  like  conditions  and  without  any  fault  attrib- 
utable to  the  party  sought  to  be  held  responsible."^"     For 

62  United  States  v.  Southern  Pacific  "  United  States  v.  Missouri  Pacific 

Co.  209  Fed.  562;  126  C.  C.  A.  384.  Ry.  Co.  213  Fed.  169. 

An  answer  setting  up  that  the  train  '^  United  States  v.  Kansas  City- 
dispatcher  in  the  office  became  Southern  Ry.  Co.  189  Fed.  471. 
"abusive,  insubordinate,  and  de-  '■''  Ibid.  United  States  v.  Southern 
ficicnt,"  and  it  became  necessary  to  Pacific  Co.  157  Fed.  459;  United 
dismiss  him,  because  his  retention  States  v.  Atchison,  T.  &  S.  F.  Ry. 
would  have  endangered  the  public;  Co.  166  Fed.  160;  United  States  v. 
and  that  he  was  replaced  as  soon  as  Union  Pacific  P.  Co.  169  Fed.  65; 
possible  by  another,  states  a  case  of  United  States  v.  Atlantic  Coast  Line 
emergency.  United  States  v.  Den-  R.  Co.  173  Fed.  764;  United  States 
ver  &  R.  G.  R.  Co.  220  Fed.  293.  v.    Southern    Pacific    Co.    220    Fed. 

"  Ihlrl.  745. 


HOURS   OF   LABOR.  535 

a  carrier  to  avail  itself  of  a  breakdown  or  wreck  as  an 
excuse  it  must  show  that  the  circumstances  it  relies  on  re- 
sulted from  a  cause  which  could  not  have  been  avoided  by 
the  exercise  of  due  diligence  and  foresight.^'  Thus  the 
failure  of  a  conductor  to  examine  a  waybill,  resulting  in  a 
violation  of  the  statute,  is  not  an  excuse.^^  A  hot  box,  or 
an  extraordinary  hard  wind  or  storm  delaying  a  train  to 
some  extent  in  making  its  ordinary  running  time,  but  not 
causing  obstructions  to  or  breaks  in  the  tracks,  is  not  a 
casualty  or  unavoidable  accident  nor  an  act  of  God.^^  A 
railroad  operated  a  single  track  line  between  two  stations, 
over  which  the  trains  of  three  companies  were  operated, 
aggregating  twenty-eight  passenger  trains  daily  and  a  large 
number  of  freight  trains.  According  to  schedule,  the  crew 
of  train  303,  westbound,  left  T  at  1 :40  p.  m.  daily,  arriving 
at  P  at  6 :45  p.  m.,  and,  returning,  left  P  at  7  :25  the  next 
morning,  arriving  at  T  at  12  :35  p.  m.  On  May  12  the  crew 
left  on  time,  but  were  detained  by  a  serious  wreck  of  an- 
other train  until  6  :00  p.  m.,  when  the  crew  and  passengers 
of  train  303  were  transferred  around  the  wreck  to  train  314, 
which  had '  come  up  from  P,  when  they  proceeded  to  P, 
reaching  there  at  12 :30  a.  m.  next  day.  The  crew,  after 
being  off  duty  six  and  one-half  hours,  returned  to  T  on 
their  regular  run,  and  in  doing  so  was  on  duty  about 
seventeen  hous  without  having  had  eight  continuous  hours 
off  duty.  It  was  held  that  the  failure  of  the  train  dis- 
patcher to  appreciate  the  fact  that  the  transfer  of  the  crew 
would  prevent  the  return  to  T  on  their  regular  train  with- 
out keeping  them  on  duty  more  than  sixteen  hours  without 
eight  consecutive  hours  rest  was  a  casualty  or  unavoidable 
accident;  and  the  statute  had  not  been  violated.*^" 

§  363.    Terminal  as  used  in  the  act  defined. — In  the  pro- 

^'  United  States  v.  Atchison,  T.  &  United   States   v.   Lehigh   Valley   R. 

S.  F.  Ry.  Co.  166  Fed.  163.  Co.  219  Fed.  532.     ^ 

^*  United  States  v.  Atlantic  Coast  ^°  United  States  v.  Northern  Pacific 

Line  R.  Co.  173  Fed.  764.  Ry.  Co.  215  Fed.  64;  United  States 

53  Great  Northern  Ry.  Co.  v.  v.  Southern  Pacific  Co.  220  Fed.  745. 
United  States,  218  Fed.  302,  and  see 


536  FEDERAL  SAFETY  APPLIANCE  ACT. 

viso  to  section  3  is  used  the  word  "terminal."  According 
to  the  usage  of  railroad  men  each  train  crew  is  assigned 
hy  the  officers  of  the  company  to  a  definite,  fixed  run,  be- 
ginning and  ending  at  fixed  points  or  places,  and  these  fixed 
beginning  and  ending  points  of  a  given  run  from  a  given 
crew  are  the  "terminals"  of  that  run  within  the  meaning 
of  the  word  "terminal"  as  used  in  the  proviso  of  section 
3  of  the  act.  "In  the  usage  of  railroad  men  there  are  dif- 
ferent 'runs'  for  different  train  crews  and  also  different 
runs  for  different  employees  on  the  same  train,  and  the  run 
of  an  engineer  on  a  passenger  train  might  be  different  from 
the  run  of  a  conductor  or  brakeman.  There  may  be  one 
run  for  a  freight  crew  and  another  run  for  a  passenger 
crew,  and  these  runs  may  not  be,  and  usually  are  not, 
coterminous,  and  one  run  or  several  runs  for  freight  crews 
may  be  between  the  terminals  of  the  run  of  a  single  pas- 
senger crew,  and  each  of  these  runs  has  its  own  terminals. 
And  in  applying  this  act  to  a  given  case  regard  must  be 
had  to  the  line  of  service  in  which  the  train  crew  or  em- 
ployees in  question  were  engaged  at  the  time  of  the  al- 
leged violation  of  the  act,  and  to  that  alone.  "''^ 

§  364.  Suspension  of  operation  of  statute  for  a  given 
trip. — "The  instances  in  which  the  act  will  not  apply  include 
only  such  occurrences  as  could  not  be  guarded  against ; 
those  which  involved  no  neglect  or  lack  of  precaution  on 
the  part  of  the  carrier,  its  agents  or  officers ;  and  they  serve 
to  waive  the  application  of  the  law  to  employees  on  trains 
only  until  such  employees,  so  delayed,  reach  a  terminal  or 
rehiy  point.""-  Any  employee  delayed  under  the  condi- 
tions stated  in  the  proviso  to  section  3,  of  which  the  above 
quoted  ruling  is  an  exposition,  may  continue  on  duty  to  the 
terminal  or  end  of  that  run.  The  proviso  removes  the 
application  of  the  statute  to  tliat  trip."-'     When  the  train 

«'  United  States  v.  Atchison,  T.  &  "^  Administration  Ruling  No.  2S7-i. 

S.    F.    Ry.    Co.    212    Fed.    1000;    St.  "^  Administration  Ruling  No.  SS-b. 

Louis,  I.   M.  &  S.   R.  Co.  V.  State, 
102  Ark.  205;  14:;  S.  W.  91.",. 


HOURS   OF   LABOR.  537 

has  been  delayed  by  reason  of  any  of  the  causes  set  out  in 
this  proviso  it  is  not  required  to  stop  at  the  tirst  "suitable 
stopping  place  and  there  tie  up  and  relieve  the  crew."  The 
statute  does  not  prevent  the  crew  from  continuing  on  duty 
and  proceeding  on  their  trip  to  the  terminal  or  end  of  that 
run.''^ 

§  365.  Occurrence  of  conditions  ordinarily  to  be  ex- 
pected.— The  excess  service  of  employees  is  not  to  be  ex- 
cused by  the  occurrence  of  conditions  ordinarily  to  be  ex- 
pected in  the  operation  of  trains.  "If  the  usual  causes  of 
delay  incident  to  operation  were  to  excuse,  then  the  statute 
would  be  wholly  ineffective  to  accomplish  its  purpose.'"*^ 
Where  a  train  was  delayed  fifteen  minutes  by  a  broken  rail, 
it  was  held  that  that  fact  was  not  "entitled  to  consideration 
as  an  unforeseen  delay.  The  track  ought  to  have  been  heavy 
enough  to  bear  the  ordinary  tratHc  over  it.'""^  A  like  ruling 
has  been  made  where  the  delay  was  occasioned  by  cleaning 
fires,'*''  by  congestion  of  traffic,'*^  by  delay  in  starting  trains,*"^ 
by  engine's  failure  due  to  mechanical  defects/'*  by  frost  on 
rails  and  heavy  tonnage,  necessitating  doubling,^^  by  hot 
boxes,'-  by  injectors  failing  on  account  of  insufficiency  or 
quality  of  water,^^  by  intermission  for  meals,'*  by  meeting 

"  United  States  V.  Atchison,  T.  &  Southern    Ry.    Co.    189    Fed.    471; 

S.  F.  Ry.  Co.  212  Fed.  1000;  United  Washington,    P.    &    C.    Ry.    Co.    v. 

States  V.  Northern  Pacific  Ry.  Co.  215  Magruder,     198    Fed.    218;    United 

Fed.  64.  States  v.  Kansas  City  Southern  Ry. 

•55  United  States  V.  Southern  Pacific  Co.   202   Fed.   828;   Missouri,   K.   & 

Co.  209  Fed.  502;  126  C.  C.  A.  384;  T.    Ry.    Co.   v.    United   States,   231 

United  States  v.  Kansas  City  South-  U.   S.    112;   34   Sup.   Ct.   26;   58   L. 

ern  Ry.  Co.  202  Fed.  828.  Ed.  — . 

^^  United  States  v.  Galveston,  H.  ''  United  States  v.  Missouri,  K.  & 

&  S.  A.  Ry.  Co.  (unreported);  Janu-  T.    Ry.    Co.    (unreported)    May   30, 

ary  12,  1912.  1912,  but  affirmed  231  U.  S.  112;  34 

"  United    States    v.    Kansas   City  Sup.  Ct.  26;  58  L.  Ed.  — . 

Southern    Ry.    Co.    189    Fed.    471;  "United    States    v.    Kansas   City 

United  States  v.  Kansas  City  South-  Southern    Ry.    Co.    189    Fed.    471; 

ern  Ry.  Co.  202  Fed.  828.  Washington,    P.    &    C.    Ry.    Co.    v. 

«8  United  States  v.  Northern  Pacific  Magruder,  198  Fed.  218. 

Co.  (unreported)  February  13,  1914.  "Missouri,   K.   &  T.   Ry.   Co.   v. 

« United    States    v.    Kansas    City  United    States,    231    U.    S.    112;    34 

Southern    Ry.    Co.    189    Fed.    471;  Sup.  Ct.  26;  58  L  Ed.—.    Per  contra. 

United  States  v.  Kansas  City  South-  United  States  v.  Milwaukee  &  St.  P. 

ern  Ry.  Co.  202  Fed.  828.  Ry.  Co.  212  Fed.  574. 

"  United    States    v.    Kansas    City  '*  United    States    v.    Chicago,    M. 


538  FEDERAL   SAFETY   APPLIANCE  ACT. 

or  passing  trains,'^  by  poor  coal,"''  by  pulled-out  or  broken 
drawbars,''  by  running  for  or  taking  water,'®  by  unneces- 
sary hauling  of  defective  cars  by  means  of  chains  instead 
of  drawbars,''^^  by  waiting  for  a  helper  engine,®"  by  w^aiting 
for  orders,®^  by  wrecks,  if  preventable  by  the  exercise  of 
diligence  and  foresight,®-  by  train  breaking  in  two  from 
unknown  cause.®^ 

§  366.  Sudden  illness  of  operator. — "While  sudden  illness 
of  an  operator  will  not  in  all  cases  justify  the  retention  of 
another  employee  on  duty  in  excess  of  the  permitted  pe- 
riods, such  illness,  coupled  with  the  inability  of  the  carrier 
to  procure  a  relief  operator,  may  in  certain  circumstances 
constitute  an  emergency  wdthin  the  purview  of  the  act.®* 
Such  was  held  to  be  the  case  where  a  railway  company  had 
at  a  day  and  night  office  three  operators,  each  of  whom 
worked  eight  hours,  and  one  was  taken  suddenly  ill  and  no 
other  operator  could  be  obtained  in  his  place ;  and  the  next 
day  and  as  soon  as  possible  the  company  sent  a  relief  man, 
but  the  train  he  was  on  was  wrecked,  causing  further  delay, 
in  consequence  of  which  the  two  remaining  operators  each 
worked  tw^elve  hours  for  four  or  five  successive  days.®^ 

&  P.  S.  Ey.  Co.  197  Fed.  624;  United  ^»  United   States    v.    Missouri,    K. 

States  V.  Kansas  City  Southern  Ry.  &  T.  Ry.  Co.  (unreported)  May  30, 

Co.  202  Fed.  828;  121  C.  C.  A.  136;  1912,  affirmed  231  U.  S.  112;  34  Sup. 

United    States    v.    Northern    Pacific  Ct.  26;  58  L.  Ed.  — . 

Ry.   Co.   213   Fed.   539;   Osborne  v.  ^^  United  States  v.  Atchison,  T.  & 

Cincinnati,  N.  O.  &  T.  P.  Ry.  Co.  S.  F.  Ry.  Co.  212  Fed.  1000. 

158  Ky.  176;  164  N.  W.  818.  8°  United    States    v.    Chicago,    M. 

"  United    States    v.    Kansas   City  &  P.  S.  Ry.  Co.  197  Fed.  624. 

Southern    Ry.    Co.    189    Fed.    471;  »' United  States  v.  Northern  Pacific 

United  States  v.  Southern  Pacific  Co.  Ry.   Co.   (unreported)   February   13, 

157  Fed.  459;  United  States  v.  Denver  1914. 

&  R.  G.  R.  Co.  197  Fed.  629;  United  ^^  United    States   v.    Kansas    City 

States  V.  Kansas  City  Southern  Ry.  Southern  Ry.  Co.  189  Fed.  471. 

Co.   202  Fed.   828;   Great   Northern  "  United  States  v.  Southern  Pacific 

Ry.  Co.  V.  United  States,  211  Fed.  Co.  220  Fed.  745. 

309.  8^  United  States  v.  Southern  Pacific 

'« United    States   v.    Kansas   City  Co.  209  Fed.  562;  126  C.  C.  A.  384: 

Southern    Ry.    Co.    189    Fed.    471;  San  Pedro,  L.  A.  &  S.  L.  R.  Co.  v. 

Wa,shington,    P.    &    C.    Ry.    Co.    v.  United  States,  220  Fed.  737. 

Magruder,     198    Fed.    218;    United  « San  Pedro,  L.  A.  &  S.  L.  R.  Co. 

States  V.  Kansas  City  Southern  Ry.  v.  United  States,  220  Fed.  737.     See 

Co.  202  Fed.  828.  a  similar  in.stance,  Oregon-Washing- 

'' United  States  v.  Galveston,  H.  ton  I^  &  Nav.  Co.  v.  United  States, 

&  S.   Ry.  Co.   (unreported)  January  223  Fed.  596. 
12,  1912. 


HOURS   OF   LABOR. 


539 


§  367.  Economical  reasons. — A  defense  based  on  the 
ground  of  economy  is  never  available.^** 

§  368.  Action  to  recover  penalty — Civil  action — Plead- 
ings.— Proceedings  on  behalf  of  the  government  for  the 
recovery  of  a  penalty  provided  by  the  act  is  a  civil  action. 
"The  pleader  is  not  required  to  state  his  cause  of  action 
with  the  exactness  and  particularity  that  would  be  neces- 
sary in  a  criminal  indictment.  In  the  nature  of  things,  in. 
most  cases  arising  under  the  acts,  facts  bring  the  case  within 
the  knowledge  of  the  railroad,  and  the  government  should 
not  be  required  to  allege  that  of  which  it  knows  nothing 
simply  to  conform  to  a  mere  technicality  of  pleading.  If 
facts  existed  that  would  bring  the  case  within  the  excep- 
tion, they  constituted  a  defense  that  the  railroad  should 
have  pleaded  and  proved.  "^^  The  burden  is  on  the  govern- 
ment to  prove  the  violation  of  the  act  as  alleged  in 
its  petition.^^  If  two  employees  were  overworked  at  the 
same  time  on  the  same  train,  two  separate  actions  may  be 
maintained.®^ 

§  369.  Defense. — If  the  defendant  railroad  desires  to  de- 
fend under  the  provisions  of  any  of  the  provisos  of  the 
statute,  it  must  set  up  such  defense  by  answer;  and  it  has 
the  burden  to  prove  the  allegations  contained  therein.*"^ 

§  369a.    Injury  to  employee — Right    of   action. — Anyone 


*^  United    States   v.    Kansas    City  '*  United    States    v.    Kansas    City 

Southern    Ry.    Co.    202    Fed.    828;  Southern  Ry.  Co.  202  Fed.  828;  121 

121  C.  C.  A.  136.  C.  C.  A.  136. 

"  United  States  V.  Houston,  B.  &  T.  «»  Missouri,   K.   &  T.   Ry.   Co.   v. 

Ry.  Co.  205  Fed.  344;  United  States  United    States,    231    U.    S.    112;    34 

V.   Kansas   City    Southern    Ry.    Co.  Sup.  Ct.  26;  58  L.  Ed.  — . 

202  Fed.  828;  United  States  v.  At-  s"  Great  Northern  R.  Co.  v.  United 

lantic  Coast  Line  R.   Co.   211   Fed.  States,  218  Fed.  302;  United  States 

897;  Missouri,  K.  &  T.  Ry.  Co.  v.  v.   Houston,   B.   &   T.   Ry.   Co.   205 

United    States,    231    U.    S.    112;    34  Fed.   344;   United  States  v.   Kansas 

Sup.  Ct.  26;  58  L.  Ed.  — ;  United  City  Southern  Ry.  Co.  202  Fed.  828; 

States  V.  St.  Louis  S.  W.  Ry.  Co.  189  121  C.  C.  A.  136. 
Fed.  954;  United  States  v.  Oregon-W. 
R.  &  N.  Co.  213  Fed.  688. 


540  FEDERAL,   SAFETY   APPLIANCE   ACT. 

who  is  injured  by  reason  of  the  fact  that  an  employee  is 
kept  at  work  in  violation  of  the  hours-of-labor  statute  can 
recover  damages,  and  the  employee  thus  kept  at  labor  who 
is  injured  by  reason  of  that  fact  may  also  recover  damages, 
"if  by  reason  of  his  dazed  mental  condition,  caused  by  his 
protracted  emploj'ment  beyond  the  limits  of  the  time  fixed 
by  the  statute,  he  was  unable  to  apprehend  clearly  his 
duties,"  and  a  condition  was  brought  about  by  him — as  a 
collision — whereby  he  was  injured.  "The  bare  fact  of  the 
performance  of  the  work  prohibited,  with  the  injury  re- 
sulting, is  proof  of  negligence.  "'^^  But  the  violation  of  the 
statute  must  itself  be  the  proximate  cause  of  the  accident.^^ 

§  370.  Liability  to  passenger  for  delay. — A  carrier  can- 
not escape  liability  to  a  passenger  for  laying  off  a  train 
and  consequently  delaying  his  arrival  at  his  destination,  on 
the  theory  that  such  a  course  may  have  been  necessary  in 
order  to  avoid  a  violation  of  the  act,  if  the  delay  respon- 
sible for  the  situation  was  attributable  to  its  own  negli- 
gence.^^ 

§  371.  Penalty,  measure — Fixing-. — The  penalty  is  de- 
terrent, not  compensative.  "The  amount  is  not  measured 
by  the  harm  to  the  employees,  but  by  the  fault  of  the  car- 
rier, and  being  punitive,  rightly  was  determined  by  the 
judge.  "^*     Violations  of  the  Hours  of  Service  Act  is  held 

*'  Pelin  V.   New  York  Central   R.  hours  out  of  57  hours,  was  held  to 

Co.  92  App.  Div.  71;  92  N.  Y.  Supp.  have  assumed  the  risk  of  injury  by 

468,    affirmed   without   opinion,    188  reason  of  his  exhausted  condition,  and 

N.  Y.  565;  91  N.  E.  1171.    The  court  could    not    recover   even    under   the 

cites  on  the  point  in  the  quotation  Employer's   Liability   Act.     Schweig 

Marino  v.  Lehmaier,  173  N.  Y.  530;  v.   Chicago,    M.   &   St.   P.   Ry.   Co. 

66  N.  E.  572;  61  L.  R.  A.  811.    Ap-  216  Fed.  750. 

proved  in  People  v.  Erie  R.  Co.  198  *'  Bjornsen  v.  Northern  Pacific  Ry. 

N.  Y.  369;  91  N.  E.  849,  reversing  Co.  (Wash.)  146  Pac.  575. 

135  N.  Y.  App.  Div.  767;  119  N.  Y.  "^  giack  v.  Charleston  &  W.  C.  Ry. 

Supp.  873;  Baltimore  &  O.  Ry.  Co.  Co.  87  S.  C.  241;  69  S.  E.  230. 

v.  Collins,  30  Ohio  Cir.  Ct.  Rep.  110;  ^^  Missouri,   K.   &   T.   Ry.   Co.   v. 

St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Mc-  United    States,    231    U.    S.    112;    34 

Whirter,  145  Ky.  427;  140  S.  W.  672  Sup.  Ct.  26;  58  L.  Ed.  — ;  United 

(reversed  229  U.  S.  265;  33  Sup.  Ct.  States    v.    Atlantic    Coast    Line    R. 

858;  57  L.  Ed.  1179).  Co.  173  Fed.  764;  98  C.  C.  A.  110; 

An  employee  of  an  interstate  rail-  Atchison,  T.  &  S.  F.  R.  Co.  v.  United 

way,  who  worked  for  more  than  54  States,  178  Fed.  12;  101  C.  C.  A.  140. 


HOURS   OF   LABOR.  54.]^ 

hy  the  courts  to  be  a  more  serious  offense  than  those  vio- 
lations of  the  Safety  Appliance  Act,  or  of  the  Twenty-eight 
Hour  La\v.°^  A  substantial  violation  of  the  act  should 
never  be  satisfied  by  a  merely  nominal  penalty.''*'  It  pre- 
scribes a  separate  penalty  for  each  and  every  employee  who 
remains  on  duty  in  excess  of  the  permitted  periods. ^^  The 
amounts  of  the  penalties  are  determinable  by  the  courts.^^ 

§  372.  Question  for  jury. — Whether  or  not  there  was 
just  cause  for  keeping  a  train  crew  at  work  more  than  six- 
teen consecutive  hours  within  the  provisions  of  the  proviso 
of  section  three,  is  a  question  for  the  jury  under  the  in- 
struction of  the  courts.^^ 

§  373.    Reports  to  Interstate  Commerce  Commission. — A 

statute^°°  empowers  the  Interstate  Commerce  Commission 
to  require  reports  of  instances  where  any  railroad  em- 
ploye has  been  on  duty  for  a  longer  period  than  the 
statute  prohibits.  But  a  carrier  inadvertently  and  hon- 
estly omitting  from  its  report  an  instance  of  that  kind  is 
not  guilty  of  a  violation  of  the  statute.^"^ 

^5  United    States    v.    Minneapolis,  *'  United    States    v.    Kansas    City 

St.   P.   &   S.   S.   AI.   Ry.   Co.   (unre-  Southern     Ry.     Co.,     Appendix     G; 

ported).  United   States   v.   Lehigh   Valley   R. 

96  United   States   v.   Cleveland,   C.  Co.  219  Fed.  532. 
C.  &  St.  L.  Ry.  Co.  (unreported).  1™  Appendix  F.  p.  69.5. 

"  Missouri,  K.  &  T.  Rv.  Co.  231  '"'  Oregon-Washington  R.  &  Nav. 

U.  S.  112;  34  Sup.  Ct.  26;  58  L.  Ed.  — .  Co.  v.  United  States,  222  Fed.  887. 

ss  Ibid. 


APPENDICES. 


543 


APPENDIX   A. 


EMPLOYERS'    LIABILITY    ACTS. 


[Act  of  190G.] 

An  Act  relating  to  liability  of 
common  carriers  in  the  District 
of  Columbia  and  Territories, 
and  common  carriers  engaged  in 
commerce  between  the  States 
and  between  the  States  and  for- 
eign nations  to  their   employes. 

[Act  of  1906.] 

Be  it  enacted  by  the  Senate  and 
House  of  Representatives  of  the 
United  States  in  Congress  assem^ 
hied,  That  every  common  carrier 
engaged  in  trade  or  commerce  in 
the  District  of  Columbia,  or  in 
any  Territory  of  the-  United 
States,  or  between  the  several 
States,  or  between  any  Territory 
and  another,  or  between  any  Ter- 
ritory or  Territories  and  any 
State  or  States,  or  the  District  of 
Columbia,  or  with  foreign  na- 
tions, or  between  the  District  of 
Columbia  and  any  State  or  States 
or  foreign  nations,  shall  be  liable 
to  any  of  its  employes,  or  in  the 
case  of  his  death,  to  his  personal 
representative  for  the  benefit  of 
his  widow  and  children,  if  any;  if 
none,  then  for  his  parents;  if 
none,  then  for  his  next  of  kin  de- 
pendent upon  him,  for  all  dam- 
ages which  may  result  from  the  neg- 
ligence of  any  of  its  officers,  agents, 
or  employes,  or  by  reason  of  any 
defect  or    insufficiency   due   to   its 


[Act  of  1908.] 

An  Act  relating  to  the  liability  of 
common  carriers  by  railroad  to 
their  employes  in  certain  cases. 

[Act  of  1908.] 

Be  it  enacted  hy  the  Senate  and 
House  of  Representatives  of  the 
United  States  of  America  in  Con- 
gress assembled,  That  every  com- 
mon carrier  by  railroad  while  en- 
gaging in  commerce  between  any 
of  the  several  States  or  Territo- 
ries, or  between  any  of  the  States 
and  Territories,  or  between  the 
District  of  Columbia  and  any  of 
the  States  or  Territories,  or  be- 
tween the  District  of  Columbia,  or 
any  of  the  States  or  Territories 
and  any  foreign  nation  or  nations, 
shall  be  liable  in  damages  to  any 
jierson  suffering  injury  while  he  is 
employed  by  such  carrier  in  such 
commerce,  or,  in  case  of  the  death 
of  such  employe,  to  his  or  her  per- 
sonal representative  for  the  benefit 
of  the  surviving  widow  or  husband 
and  children  of  such  employe;  and 
if  none,  then  of  such  employe's 
parents,  and  if  none,  then  to  the 
next  of  kin  dependent  upon  such 
employe  for  such  injury  or  death 
resulting  in  whole  or  in  part  from 
the  negligence  of  any  of  the  offi- 
cers, agents  or  employes  of  such 
carrier,  or  by  reason  of  any  defect 
or    insufficiency   due   to    its   negli- 

545 


546 


FEDERAL   EMPLOYERS'   LIABILITY   ACT. 


gence  in  its  cars,  engines,  appliances, 
machinery,  track,  roadbed,  ways  or 
works. 


Sec.  2.  That  in  all  actions  here- 
after brought  against  any  common 
carrier  to  recover  damages  for  per- 
sonal injuries  to  an  employe,  or 
where  such  injuries  have  resulted 
in  his  death,  the  fact  that  the  em- 
ploye may  have  been  guilty  of  con- 
tributory negligence  shall  not  bar 
a  recovery  where  his  contributor_v 
negligence  was  slight  and  that  of 
the  emploj^r  was  gross  in  com- 
parison, but  the  damages  shall  be 
diminislied  by  the  jury  in  i)ropor- 
tion  to  the  amount  of  negligence 
attributable  to  sucli  employe.  All 
questions  of  negligence  and  con- 
tributory negligence  sliall  h<'  for 
the  jury. 


gence,  in  its  cars,  engines,  appli- 
ances, machinery,  track,  road-bed, 
works,  boats,  wharves,  or  other 
equipment. 

Sec.  2.  That  every  common  car- 
rier by  railroad  in  the  Territories, 
the  District  of  Columbia,  the  Pan- 
ama Zone,  or  other  possessions  of 
the  United  States,  shall  be  liable 
in  damages  to  any  person  suffer- 
ing injury  while  he  is  employed 
by  such  carrier  in  any  of  said  ju- 
risdictions, or  in  case  of  the  death 
of  such  employe,  to  his  or  her 
personal  representatives,  for  the 
benefit  of  the  surviving  widow  or 
husband  and  children  of  such  em- 
ploye; and  if  none,  then  of  such 
employe's  parents;  and  if  none, 
then  of  the  next  of  kin  dependent 
upon  such  employe,  for  such  injury 
or  death  resulting  in  whole  or  in 
part  from  the  negligence  of  any  of 
the  officers,  agents  or  employes  of 
such  carrier,  or  by  reason  of  any 
defect  or  insufficiency  due  to  its 
negligence  in  its  cars,  engines,  ap- 
pliances, machinery,  track,  road- 
bed, works,  boats,  wharves  or  other 
equipment. 

Sec.  3.  That  in  all  actions 
hereafter  brougnt  against  any  such 
common  CE^rrier  by  railroad  under 
or  by  virtue  of  the  provisions  of 
this  act  to  recover  damages  for 
personal  injury  to  an  employe,  or 
where  such  injuries  have  resulted 
in  his  death,  tlie  fact  that  the  em- 
ploye may  have  been  guilty  of  con- 
tributory negligence  shall  not  bar 
a  recover"  but  the  damages  shall 
be  diminished  by  tlie  jury  in  pro- 
])ortion  to  the  amount  of  negli- 
gence attributable  to  such  em- 
I)loye:  Provided,  however,  That  no 
sucli  employe  who  may  be  injured 
or  killed  shall  l)e  held  to  have 
luM'n  guilty  of  contributory  negli- 


APPENDIX   A. 


547 


Sec.  3.  That  no  contract  of  em- 
ployment, insurance,  relief  benefit, 
or  indemnity  for  injury  or  cteatli 
entered  into  by  or  on  behalf  of 
any  employe,  nor  the  acceptance  of 
any  such  insurance,  relief  benefit, 
or  indemnity  by  the  person  enti- 
tled thereto,  shall  constitute  any 
bar  or  defense  to  any  action 
brought  to  recover  damages  for 
personal  injuries  to  or  death  of 
such  employe:  Provided,  liowver. 
That  upon  the  trial  of  s.uch  ac- 
tion against  any  common  carrier 
the  defendant  may  set  off  therein 
any  sum  it  has  contributed  toward 
any  such  insurance,  relief  benefit, 
or  indemnity  that  may  have  been 
paid  to  the  injured  employe,  or  in 
case  of  his  death,  to  his  personal 
representative. 

Sec.  4.  That  no  action  shall  be 
maintained  under  this  act,  unless 
commenced  within  one  year  from 
the  time  the  cause  of  action  ac- 
crued. 


gence  in  any  case  where  the  vio- 
lation by  such  common  carrier  of 
any  statute  enacted  for  the  safety 
of  employes  contributed  to  the  in- 
jury or  death  of  such  employe. 

Sec.  4.  That  in  any  action 
brought  against  any  common  car- 
rier under  or  by  virtue  of  any  of 
the  provisions  of  this  act  to  re- 
cover damages  for  injuries  to,  or 
the  death  of,  any  of  its  employes, 
such  employe  shall  not  be  held  to 
have  assumed  the  risk  of  his  em- 
ployment in  any  case  where  the 
violation  by  such  common  carrier 
of  any  statute  enacted  for  the 
safety  of  employes  contributed  to 
the  injury  or  death  of  such  em- 
ploye. 

Sec.  5.  That  any  contract, 
rule,  regulation,  or  device  what- 
soever, the  purpose  and  intent  of 
which  shall  be  to  enable  any  com- 
mon carrier  to  exempt  itself  from 
any  liability  created  by  this  act, 
shall  to  that  extent  be  void:  Pro- 
vided, That  in  any  action  brought 
against  any  such  common  carrier 
under  or  by  virtue  of  any  of  the 
provisions  of  this  act,  such  com- 
mon carrier  may  set  off  therein 
any  sum  it  has  contributed  or 
paid  to  any  insurance,  or  relief 
benefit,  or  indemnity  that  may 
have  been  paid  to  the  injured  em- 
ploye, or  the  person  entitled 
thereto,  on  account  of  the  injury 
or  death  for  which  said  action  was 
brought. 


Sec.  6.  That  no  action  shall  be 
maintained  under  this  act  unless 
commenced  within  two  years  from 
the  day  the  cause  of  action  ac- 
crued. Under  this  Act  an  action 
may  be  brought  in  a  circuit  court 
of  the  United  States,  in  the  district 
of  the  residence  of  the  defendant, 
or  in  which  tlK-  cause  of  action 
arose,  or  in  which  defendant  shall 


548 


FEDERAL    EMPLOYERS'    LIABILITY    ACT. 


Sec.  5.  That  nothing  in  this  act 
shall  be  held  to  limit  tlie  duty  of 
common  carriers  by  railroads,  or 
impair  the  rights  of  their  em- 
ployes under  the  Safety  Appliance 
Act  of  March  2,  1893,  as  amended- 
April   1,  1896,  and  March  2,  1903. 

Approved  June  11,  1906;  34 
Stat,  at  Large,  232  c.  3073. 


be  doing  business  at  the  time  of 
commencing  such  action.  The  jur- 
isdiction of  the  courts  of  the 
United  States  under  this  Act  shall 
be  concurrent  with  that  of  the 
courts  of  the  several  states,  and 
no  case  arising  under  this  Act  and 
brought  in  any  state  court  of  com- 
petent jurisdiction  shall  be  re- 
moved to  any  court  of  the  United 
States.  (As  amended  April  5, 
1910.) 

Sec.  7.  That  the  term  "com- 
mon carrier"  as  used  in  this  act 
shall  include  the  receiver  or  re- 
ceivers, or  other  persons  or  corpo- 
rations charged  with  the  duty  of 
the  management  of  the  business  of 
a  common  carrier. 

Sec.  8.  That  nothing  in  this 
act  shall  be  held  to  limit  the  duty 
or  liability  of  common  carriers  or 
impair  the  rights  of  their  em- 
ployes under  any  other  act  or  acts 
of  Congress,  or  to  affect  the  prose- 
cution of  any  pending  proceeding 
or  right  of  action  under  the  act  of 
Congress,  entitled,  "An  act  relat- 
ing to  liability  ol  common  carriers 
in  the  District  of  Columbia  and 
Territories,  and  to  common  car- 
riers engaged  in  commerce  be- 
tween the  States  and  between  the 
States  and  foreign  nations  to  their 
employes,"  approved  June  11, 
1906. ' 

Approved  April  22,  1908. 

Sec.  9.  That  any  right  of  action 
given  by  this  Act  to  a  person  suf- 
fering injury  sliall  survive  to  his 
or  her  personal  representative,  for 
tho  benefit  of  the  surviving  widow 
or  liusband,  and  children  of  such 
emploj'ee,  and,  if  none,  tlien  of 
such  employee's  parents;  and,  if 
none,  then  of  the  next  of  kin  de- 
pendent upon  sucli  employee,  but 
in  such  cases  there  shall  be  only 
one  recovery  for  tlie  same  injury. 
(As   amended   April    5,    1010.) 


APPENDIX   A. 


549 


POOR  PERSON. 


[Public— No.  317.] 


[S.  5836.] 


An  Act  to  amend  section  one, 
chapter  two  hundred  and  nine,  of 
the  United  States  Statutes  at 
Large,  volume  twenty-seven,  enti- 
tled "An  Act  providing  when  plain- 
tiff may  sue  as  a  poor  person  and 
when  counsel  shall  be  assigned  by 
the  court,"  and  to  provide  for  the 
prosecution  of  writs  of  error  and 
appeals  in  forma  pauperis,  and  for 
other  purposes. 

Be  it  enacted  by  the  Senate  and 
House  of  Representatives  of  the 
United  States  of  America  in  Con- 
gress assembled,  That  section  one 
of  an  Act  entitled  "An  Act  provid- 
ing when  plaintiflF  may  sue  as  a 
poor  person  and  wlien  counsel  shall 
be  assigned  by  the  court,"  approved 
July  twentieth,  eighteen  hundred 
and  ninety-two,  be,  and  the  same  is 
hereby,  amended  so  as  to  read  as 
follows : 

"That  any  citizen  of  the  United 
States  entitled  to  commence  or 
defend  any  suit  or  action,  civil  or 
criminal,  in  any  court  of  the 
United  States,  may,  upon  the  order 
of  the  court,  commence  and  prose- 
cute or    defend   to   conclusion   any 


suit  or  action,  or  a  writ  of  error, 
or  an  appeal  to  the  Circuit  Court 
of  Appeals,  or  to  the  Supreme 
Court  in  such  suit  or  action,  in- 
cluding all  appellate  proceedings, 
unless  the  trial  court  shall  certify 
in  writing  that  in  the  opinion  of 
the  court  such  appeal  or  wi-it  of 
error  is  not  taken  in  good  faith, 
without  being  required  to  prepay 
fees  or  costs  or  for  the  printing  of 
the  record  in  the  Appellate  Court 
or  give  security  therefor,  before  or 
after  bringing  suit  or  action,  or 
upon  suing  out  a  writ  of  error 
or  appealing,  upon  filing  in  said 
court  a  statement  under  oath  in 
writing  that  because  of  his  poverty 
he  is  unable  to  pay  the  costs  of 
said  suit  or  action  or  of  such  writ 
of  error  or  appeal,  or  to  give  se- 
curity for  the  same,  and  that  he 
believes  that  he  is  entitled  to  the 
redress  he  seeks  by  such  suit  or 
action  or  writ  of  error  or  appeal, 
and  setting  forth  briefly  the  nature 
of  his  alleged  cause  of  action,  or 
appeal." 
Approved,  June  25,  1910. 


EMPLOYEES  OF  THE  UNITED  STATES. 


[Public— No.  176.] 

[H.  R.  21844.] 


An  Act  granting  to  certain  em- 
ployees of  the  United  States  the 
right  to  receive  from  it  compensa- 
tion for  injuries  sustained  in  the 
course  of  their  employment. 


Be  it  enacted  by  the  Senate  and 
House  of  Representatives  of  the 
United  States  of  America  in  Con- 
gress assembled.  That  when,  on  or 
after  August   first,   nineteen   hun- 


550 


FEDERAL   EMPLOYERS'    LIABILITY    ACT. 


dred  and  eight,  any  person  em- 
ployed by  the  United  States  as  an 
artisan  or  laborer  in  any  of  its 
manufacturing  establishments,  ar- 
senals, or  navy -yards,  or  in  the 
construction  of  river  and  harbor 
or  fortification  work  or  in  hazard- 
ous employment  on  construction 
work  in  the  reclamation  of  arid 
lands  or  the  management  and  con- 
trol of  the  same,  or  in  hazardous 
employment  under  the  Isthmian 
Canal  Commission,  is  injured  in 
the  course  of  such  employment, 
such  employee  shall  be  entitled  to 
receive  for  one  year  thereafter, 
unless  such  employee,  in  the  opin- 
ion of  the  Secretary  of  Commerce 
and  Labor,  be  sooner  able  to  re- 
sume workj  the  same  pay  as  if  he 
continued  to  be  employed,  such 
payment  to  be  made  under  such 
regulations  as  the  Secretary  of 
Commerce  and  Labor  may  pre- 
scribe :  Provided,  That  no  compen- 
sation shall  be  paid  under  this  Act 
where  the  injury  is  due  to  the  neg- 
ligence or  misconduct  of  the  em- 
ployee injured,  nor  unless  said  in 
jury  shall  continue  for  more  than 
fifteen  days.  All  questions  of  neg- 
ligence or  misconduct  shall  be  de- 
termined by  the  Secretary  of  Com- 
merce and   Labor. 

Sec.  2.  That  if  any  artisan  or 
laborer  so  employed  shall  die  dur- 
ing the  said  year  by  reason  of  such 
injury  received  in  the  course  of 
such  employment,  leaving  a  wido^', 
or  a  child  or  children  under  sixteen 
years  of  age,  or  a  dependent 
parent,  such  widow  and  child  or 
children  and  dependent  parent 
shall      be      entitled      to      receive. 


in  such  portions  and  under  such 
regulations  as  the  Secretary  of 
Commerce  and  Labor  may  pre- 
scribe, the  same  amount,  for  the 
remainder  of  the  said  year,  that 
said  artisan  or  laborer  would  be 
entitled  to  receive  as  pay  if  such 
employee  were  alive  and  continued 
to  be  employed:  Provided,  That  if 
the  widow  shall  die  at  any  time 
during  the  said  year  her  portion  of 
said  amount  shall  be  added  to  the 
amount  to  be  paid  to  the  remain- 
ing beneficiaries  imder  the  provi- 
sions of  this  section,  if  there  be 
any. 

Sec.  3.  That  whenever  an  acci- 
dent occurs  to  any  employee  em- 
braced within  the  terms  of  the  first 
section  of  this  Act,  and  which 
results  in  death  or  a  probable  in- 
capacity for  work,  it  shall  be  the 
duty  of  the  official  superior  of  suca 
employee  to  at  once  report  such 
accident  and  the  injury  resulting 
therefrom  to  the  head  of  his  Bu- 
reau or  independent  office,  and  his 
report  shall  be  immediately  com- 
municated through  regular  ofiicial 
channels  to  the  Secretary  of  Com- 
merce and  Labor.  Such  report 
shall  state,  first,  the  time,  cause, 
and  nature  of  the  accident  and 
injury  and  the  probable  duration  of 
the  injury  resulting  therefrom; 
second,  whether  the  accident  arose 
out  of  or  in  the  course  of  the 
injured  person's  employment;  third, 
whether  the  accident  was  due  to 
negligence  or  misconduct  on  the 
part  of  the  employee  injured; 
finirth,  any  other  matters  refjuired 
by  such  rules  and  regulations  as 
the    Secretary    of    Commerce    and 


APPENDIX   A. 


551 


Labor  may  prescribe.  The  head  of 
each  DepartiiK>rit  or  intiepciident 
office  shall  have  power,  however,  to 
charge  a  special  official  with  the 
duty  of  making  such  reports. 

Sec.  4.     That  in  the  case  of  any 
accident     which     shall     result     in 
death,  the  persons  entitled  to  com- 
pensation under  this  Act  or  their 
legal   representatives  shall,  within 
ninety  days  after  such  death,  file 
with    the    Secretary   of    Commerce 
and  Labor  an  affidavit  setting  forth 
their   relationship   to  the  deceased 
and  the  ground  of  their  claim  for 
compensation  under  the  provisions 
of  this  Act.     This  shall  be  accom- 
panied by  the  certificate  of  the  at- 
tending physician  setting  forth  the 
fact    and    cause   of   death,    or    the 
nonproduction    of    the    certificate 
shall     be     satisfactorily     account- 
ed    for.      In      the     case      of      in- 
capacity   for    work    lasting    more 
than  fifteen  days,  the  injured  party 
desiring  to  take  the  benefit  of  this 
Act  shall,  within  a  reasonable  pe- 
riod  after  the  expiration  of   such 
time,  file  with  his  official  superior-, 
to   be    forwarded    through    regular 
official  channels  to  the  Secretary  of 
Commerce  and  Labor,  an  affidavit 
setting   forth   the   grounds    of    his 
claim   for  compensation,  to  be  ac- 
companied by  a   certificate  of  the 
attending  physician  as  to  the  cause 
and  nature  of  the  injury  and  prob- 
able   duration    of    the    incapacity, 
or  the  nonproduction  of  the  certifi- 
cate   shall     be     satisfactorily     ac- 
counted  for.     If   the   Secretary  of 
Commerce    and    Labor    shall    find 
from    the    report   and   affidavit   or 
other    evidence    produced    by    the 


claimant  or  his  or  her  legal  repre- 
sentatives, or  from  such  addition  il 
investigation  as  the  Secretary  of 
Commerce  and  Labor  may  direct, 
that  a  claim  for  compensation  ia 
established  under  this  Act,  the 
com{)ensation  to  be  paid  shall  be 
determined  as  provided  under  this 
Act  and  approved  for  payment  by 
the  Secretary  of  Commerce  and 
Labor. 

Sec.  5.  That  the  employee  shall, 
whenever  and  as  often  as  required 
by  the  Secretary  of  Commerce  and 
Labor,  at  least  nnce  in  six  months, 
submit  to  medical  examination,  to 
be  provided  and  paid  for  under  the 
direction  of  the  Secretary,  and  if 
such  employee  refuses  to  submit 
to  or  obstructs  such  examination 
his  or  her  right  to  compensation 
shall  be  lost  for  the  period  cov- 
ered by  the  continuance  of  such 
refusal  or  obstruction. 

Sec.  6.  That  payments  under 
this  Act  are  only  to  be  made  to  the 
beneficiaries  or  their  legal  repre- 
sentatives other  than  assignees,  and 
shall  not  be  subject  to  the  claims 
of  creditors. 

Sec.  7.  That  the  United  States 
shall  not  exempt  itself  from  lia- 
bility under  this  Act  by  any  con- 
tract, agreement,  rule,  or  regula- 
tion, and  any  such  contract,  agree- 
ment, rule,  or  regulation  shall  be 
pt'o  tanto  void. 

Sec.  8.  That  all  Acts  or  parts 
of  Acts  in  conflict  herewith  or  pro- 
viding a  different  scale  of  compen- 
sation or  otherwise  regulating  its 
payment  are  hereby  repealed. 
Approved,  May  30,  1908. 


552 


FEDERAL   EMPLOYERS     LIABILITY    ACT. 


GRANTING  TO  CERTAIN  EMPLOYEES  OF  THE  UNITED  STATES 
THE  RIGHT  TO  RECEIVE  FROM  IT  COxMPENSATION  FOR 
INJURIES  SUSTAINED  IN  THE  COURSE  OF  THEIR  EMPLOY- 
MENT. 

;Mat  12,  1908. — Committed  to  the  Committee  of  the  Whole  House  on  the 
state  of  the  Union  and  ordered  to  be  printed. 

Mr.  Alexander,  of  New  York,  from  the  Committee  on  the 
Judiciary,  submitted  the  following 

REPORT. 

[To  accompany  H.  R.  21844.] 


The  Committee  on  the  Judiciary 
have  had  under  consideration  the 
bill  (H.  R.  21844),  granting  to 
certain  employees  of  the  United 
States  the  right  to  receive  from  it 
compensation  for  injuries  sustained 
in  the  course  of  their  employment, 
and  recommend  that  the  same  do 
pass. 

The  purpose  of  this  bill  is  to 
compensate  Government  employees 
engaged  in  hazardous  occupations. 
Such  employment  is  practically  con- 
fined to  arsenals,  navy-yards,  man- 
ufacturing establishments  ( such  as 
armories,  clothing  depots,  ship- 
yards, proving  grounds,  powder 
factories,  etc.),  to  construction  of 
river  and  harbor  work,  and  to  work 
upon  the  Isthmian  Canal.  The  bill 
provides  that  the  wages  of  such 
an  employee  who  is  injured  in  tlie 
course  of  such  employment,  with- 
out contributory  negligence  or  mis- 
conduct, shall  be  continued  for  one 
year  unless  he  is  sooner  able  to 
resume  work.  If  such  an  one  is 
killed,  or  subsequently  dies  during 
the  year,  an  amount  equal  to  a 
year's  wages  or  the  remainder 
thereof  is  paid  in  equal  portions 
to  his  widow,  children  under  six- 
teen years  of  age,  and  dependent 
mother,  or  to  the  survivor  or  sur- 
vivors. 

All  payments  are  maflo  under  the 
direction  of  the  Secretary  of  Com- 


merce and  Labor,  who  is  authorized 
to  pass  upon  questions  of  negli- 
gence and  misconduct  and  to  make 
such  rules  and  regulations  as  may 
be  necessary  to  safeguard  the  in- 
terests of  the  Government  and  of 
the  beneficiaries.  From  his  deci- 
sion no  appeal  is  allowed.  Sections 
3  to  9  (inclusive)  make  ample  pro- 
vision for  the  protection  of  the 
Government^  requiring  notice  of  ac- 
cident, investigations,  medical  ex- 
aminations from  time  to  time,  etc. 
Section  10  repeals  all  acts  in  con- 
flict. 

The  principle  of  this  measure  is 
not  new  to  our  Government.  For 
five  years  railway  postal  clerks 
have  been  thus  compensated,  and 
since  JNIay  4,  1882,  members  of 
the  Life-Saving  Service  have  en- 
joyed similar  benefits.  In  case  of 
injury  a  postal  clerk  is  paid  hi-i 
wages  for  one  year,  unless  sooner 
able  to  resume  work,  ranging  from 
$800  to  $1,000.  If  he  is  killed  or 
dies  witiiin  one  year,  his  family 
receives  a  lump  sum  of  $1,000.  A 
surfman  in  the  Life-Saving  Service, 
if  injured,  may  receive  his  wages 
for  two  years,  unless  sooner  able 
to  resume  work,  ranging  from  $050 
to  $1,560  for  the  two  years.  If 
killed,  his  family  receives  a  like 
amount.  Under  the  provisions  of 
this  hill  a  Government  artisan  or 
laborer,     if     injured,     receives    one 


APPENDIX    A. 


553 


year's  wages,  unless  sooner  able  to 
resume  work,  ranging  from  $300 
(boys)  to  $1,GOO  (foreman  and  ex- 
perts), being  an  average  of  about 
$800.  If  killed,  his  family  receives 
a  like  amount. 

There  is  insufficient  data  as  to 
the  number  and  character  of  ac- 
cidents occurring  to  Government 
employees  upon  which  to  base  an 
accurate  estimate  of  the  cost  under 
this  bill.  In  the  railway  mail  serv- 
ice there  are  14,347  postal  clerks, 
and  last  year  it  cost  tlie  Govern- 
ment $98,143.95  because  of  acci- 
dents. The  Life-Saving  Seiwiee 
employs  1,898  surfmen,  and  the 
Government  during  the  last  year 
paid  for  accidents  and  deaths 
$41,270.51.  This  amount  al.«!0  in- 
cludes sums  i^aid  for  sickness  con- 
tracted in  the  service. 

There  are  approximately  6,600 
artisans  and  laborers  employed  in 
arsenals,  armories,  ajid  otlier  man- 
ufacturing establishments  of  the 
War  Department,  and  during  the 
past  ten  years  eight  were  killed 
and  forty-one  more  or  less  se- 
riously injured.  The  average  ab- 
sence from  work  because  of  these 
injuries  was  about  two  and  one- 
half  months.  Under  this  bill  the 
Government  would  have  paid 
during  the  ten  years  a  total  of 
about  $20,000,  or  an  average  of 
$2,000  a  year.  It  ought  to  be 
added  that  tne  fewness  of  the  acci- 
dents arising  in  the  workshops  of 
the  War  Department  is  largely  due 
to  the  excellent  condition  of  the 
machinery  and  the  discipline  exer- 
cised by  the  officers  in  charge. 

The  thirty-one  na-\^-yards,  naval 
stations,  training  stations,  and 
naval  magazines  under  the  Navy 
Department  employ  approximately 
25,000  men,  but  no  statistics  are 
available  showing  the  number  of 
accidents.  Under  the  Isthmian  Ca- 
nal Commission  approximately 
11,000  men  are  engaged  in  hazard- 


ous occupations,  their  wages  rang- 
ing from  $500  (unskilled  laborers* 
to  $2,200  (locomotive  engineers). 
During  the  calendar  year  1907 
there  were  142  accidents  resulting 
in  death  and  approximately  1,300 
treated  in  the  hospitals.  As  no 
statistics  are  available  showing  th«j 
wages  received  by  those  killed  or 
injured,  no  estimate  can  be  made 
of  the  probable  cost  of  compensa- 
tion under  this  bill.  The  number 
of  injured  in  proportion  to  those 
employed  is  very  large,  although  it 
is  likely  that  many  accideirts  were 
slight  and  many  due  to  the  con- 
tributory negligence  of  the  em- 
ployees. 

The  Government  in  its  river  and 
harbor  work  employs  approxi- 
mately 12,800  artisans  and  labor- 
ers, tlieir  wages  ranging  from  $400 
to  $3,600j  with  an  approximate 
average  of  $1,200.  The  perfect 
machinery  and  the  discipline  exer- 
cised over  the  employees  have  re- 
sulted in  a  very  few  accidents,  sev- 
enty-five approximately  having 
occurred  since  and  including  the 
year  1894.  Of  those  injured  only 
two  were  killed  and  one  died. 

The  bill  covers  approximately 
55,400  employees  out  of  a  total  of 
337,751  connected  Avith  the  classi- 
fied and  unclassified  civil  service 
of  the  United  States.  If  to  this 
amount  be  added  the  postal  clerks 
and  members  of  the  Life-Saving 
Service,  the  aggregate  who  may  be 
cared  for,  if  injured,  will  be  in- 
creased  to   71,600. 

This  measure  is  not  as  compre- 
hensive or  as  liberal  as  many  de- 
sire. Bills  have  been  introduced 
extending  relief  to  all  employees 
of  the  Government.  Some  of  theso 
bills  exclude  negligence;  others  al- 
low actions  to  be  brought  in  Fed- 
eral courts,  with  and  without 
limitation  as  to  the  amount  recov- 
erable-, others,  following  the  rule 
of    compensation    adopted    in    this 


554 


FEDERAL   EMPLOYERS'    LIABILITY    ACT. 


measure,  double  and  treble  the 
amount  to  be  paid  in  case  of  in- 
jury or  death.  Nevertheless,  it  has 
seemed  wise  to  the  committee  to 
confine  compensation  so  far  as  pos- 
sible to  hazardous  occupations, 
and  to  adhere  not  only  to  the 
system  already  adopted  by  the 
Treasury  and  Post-Office  Depart- 
ments, but  to  dispense  relatively 
about  the   same  amount  of  relief. 

This  plan,  uniformly  advocated 
by  such  employees  of  the  Grovern- 
ment  as  appeared  before  the  com- 
mittee, seemg  to  be  much  more 
satisfactory  because  it  gives  food  to 
the  family  at  a  time  when  the 
employee  cannot  earn  wages.  In- 
deed, a  strong  feeling  was  evi- 
denced at  the  hearings  that  some 
less  expensive  system  of  compen- 
sating accidents  should  be  adopted 
than  the  lawsuit,  which  involves 
delay,  produces  uncertainty,  Avith- 
holds  money  when  most  needed,  and 
works  other  hardships.  What  the 
injured  employee  seems  to  desire 
is  to  have  his  family  supported 
while  he  ig  unable  to  earn  wages, 
and  he  seems  to  prefer  to  take  a 
less  amount,  to  be  used  at  such  a 
time,  than  to  await  the  result  of  a 
slow  lawsuit,  even  though  it  may, 
if  he  succeeds,  bring  him  two  or 
three  times  as  much. 

Several  of  the  governments  of 
Europe  have  adopted  this  system 
of  compensation.  Under  the  provi- 
sions of  the  English  workmen's 
compensation  Act  of  1897  an  em- 
ployee of  the  Government,  if  it*- 
jured,  receives  for  a  period  not 
exceeding  six  months  one-half  his 
average  weekly  earnings  during  the 
previous  twelve  months;  if  killed, 
his  family  receives  an  amount 
ranging    from    $730   to   $1,460. 

In  France  certain  Government 
employees  in  state,  departmental, 
and  communal  establisliments  are 
paid    two-tliird»    of    tlieir    annual 


wages  for  permanent  total  disable- 
ment and  one-half  for  temporary 
disability,  besides  medical  anJ 
surgical  benefits.  When  death  oc- 
curs, those  dependent  upon  him 
receive  sixty  per  cent,  of  his  an- 
nual wages  until  the  widow 
remarries  and  until  the  children 
reach  the  age  of  sixteen. 

In  Germany  employees  of  the 
Government  in  the  industrial  es- 
tablishments of  the  army  and  navy 
and  in  the  postal,  telegraph,  and 
railway  service  receive  for  totivl 
disability  from  one-half  to  two- 
thirds  of  their  diaily  wages  and  a 
less  amount  for  partial  disability. 
In  case  of  death  dependents  receive 
sixty  per  cent,  of  their  wages  until 
widow  remarries,   ete. 

Similar  compensation  is  pro- 
vided in  Austria  and  other  Euro- 
pean countries.  The  money  so  paid 
seems  to  be  derived  for  the  most 
part  from  accident  insurance,  for 
which  the  governments  pay  in 
whole  or  in  part.  In  Austria,  for 
illustration,  an  employee  receives 
sixty  per  cent,  of  his  wages  for 
the  first  four  weeks  from  the  re- 
quired sick  benefit  insurance,  for 
which  the  employee  pays  two- 
thirds  and  the  Goveninient  one- 
third;  thereafter  during  disability 
he  receives  the  same  amount  from 
the  required  accident  insurance 
fund,  of  which  the  employee  pays 
ten  per  cent,  and  the  Government 
ninety  per  cent.  In  Belgium  em- 
ployees of  the  Government  are  com- 
pensated under  the  compulsory 
accident  insurance  law,  the  Gov- 
ernment paying  the  whole  premium. 
The  entire  cost  under  the  work- 
men's compensation  Act  of  France 
is  borne  by  the  Government.  In 
German}'  sickness  and  accident  in- 
surance is  compulsory,  except  in 
the  case  of  soldiers  and  other  ex- 
cepted classes,  which  are  otherwise 
l^rovidcd  for. 


APPENDIX   A. 


555 


ACCIDENT  REPORTS  ACT. 


An  Act  requiring  common  carriers 
engaged  in  interstate  and  foreign 
commerce  to  make  full  reports  of 
all  accidents  to  the  Interstate 
Commerce  Commission,  and  author- 
izing investigations  thereof  by  said 
Commission. 

Be  it  enacted  by  the  Senate  and 
House  of  Representatives  of  the 
United  States  of  America  in  Congress 
assembled,  That  it  shall  be  the  duty 
of  the  general  manager,  superintend- 
ent, or  other  proper  officer  of  every 
common  carrier  engaged  in  interstate 
or  foreign  commerce  by  railroad  to 
make  to  the  Interstate  Commerce 
Commission,  at  its  office  in  Washing- 
ton, District  of  Columbia,  a  monthly 
report,  under  oath,  of  all  collisions, 
derailments,  or  other  accidents  re- 
sulting in  injury  to  persons,  equip- 
ment, or  roadbed  arising  from  the 
operation  of  such  railroad  under  such 
rules  and  regulations  as  may  be  pre- 
scribed by  the  said  Commission, 
which  report  shall  state  the  nature 
and  causes  thereof  and  the  circum- 
stances connected  therewith:  Pro- 
vided, That  hereafter  all  said  carriers 
shall  be  relieved  from  the  duty  of 
reporting  accidents  in  their  annual 
financial  and  operating  reports  made 
to  the  Commission. 

Sec.  2.  That  any  common  carrier 
failing  to  make  such  report  within 
thirty  days  after  the  end  of  any 
month  shall  be  deemed  guilty  of  a 
misdemeanor,  and  upon  conviction 
thereof  by  a  court  of  competent 
jurisdiction  shall  be  punished  by  a 
fine  of  not  more  than  one  hundred 
dollars  for  each  and  every  offense 
and  for  every  day  during  which  it 
shall  fail  to  make  such  report  after 
the  time  herein  specified  for  making 
the  same. 

Sec.  3.  That  the  Interstate  Com- 
merce Commission  shall  have  authori- 
ty to  investigate  all  collisions,  de- 
railments,    or    other    accidents    re- 


sulting in  serious  injury  to  person  or 
to  the  property  of  a  railroad  occurring 
on  the  line  of  any  common  carrier 
engaged  in  interstate  or  foreign  com- 
merce by  railroad.  The  Commission, 
or  any  impartial  investigator  there- 
unto authorized  by  said  Commission, 
shall  have  authority  to  investigate 
such  collisions,  derailments,  or  other 
accidents  aforesaid,  and  all  the  attend- 
ing facts,  conditions,  and  circum- 
stances, and  for  that  purpose  may 
subpoena  witnesses,  administer  oaths, 
take  testimony,  and  require  the  pro- 
duction of  books,  papers,  orders, 
memoranda,  exhibits,  and  other  evi- 
dence, and  shall  be  provided  by  said 
carriers  with  all  reasonable  facilities: 
Provided,  That  when  such  accident  is 
investigated  by  a  commission  of  the 
State  in  which  it  occurred,  the  Inter- 
state Commerce  Commission  shall, 
if  convenient,  make  any  investigation 
it  may  have  previously  determined 
upon,  at  the  same  time  as,  and  in 
connection  with,  the  state  commission 
investigation.  Said  Commission  shall, 
when  it  deems  it  to  the  public  interest, 
make  reports  of  such  investigations, 
stating  the  cause  of  accident,  together 
with  such  recommendations  as  it 
deems  proper.  Such  reports  shall  be 
made  public  in  such  manner  as  the 
Commission  deems  proper. 

Sec.  4.  That  neither  said  report  nor 
any  report  of  said  investigation  nor 
any  part  thereof  shall  be  admitted  as 
evidence  or  used  for  any  purpose  in 
any  suit  or  action  for  damages  grow- 
ing out  of  any  matter  mentioned  in 
said  report  or  investigation. 

Sec.  5.  That  the  Interstate  Com- 
merce Commission  is  authorized  to 
prescribe  for  such  common  carriers 
a  method  and  form  for  making  the 
reports  hereinbefore  provided. 

Sec.  6.  That  the  Act  entitled  "An 
Act  requiring  common  carriers  en- 
gaged in  interstate  commerce  to  make 
full  reports  of  all  accidents  to  the 
Interstate    Commerce   Commission," 


556 


FEDERAL   EMPLOYERS'    LIABILITY  ACT. 


approved  March  third,  nineteen 
hundred  and  one,  is  hereby  repealed. 
Sec.  7.  That  the  term  "interstate 
commerce,"  as  used  in  this  Act,  shall 
include  transportation  from  any  State 
or  Territory  or  the  District  of  Colum- 
bia to  any  other  State  or  Territory  or 
the   District   of   Columbia,    and   the 


term  "foreign  commerce,"  as  used  in 
this  Act,  shall  include  transportation 
from  any  State  or  Territory  or  the 
District  of  Columbia  to  any  foreign 
country  and  from  any  foreign  country 
to  any  State  or  Territory  or  the 
District  of  Columbia. 


MEDALS  OF  HONOR  ACT. 


An  Act  to  promote  the  security  of 
travel  upon  railroads  engaged  in 
interstate  commerce,  and  to  en- 
courage the  saving  of  life. 

Be  it  enacted  by  the  Senate  and 
House  of  Representatives  of  the 
United  States  of  America  in  Congress 
assembled.  That  the  President  of 
the  United  States  be,  and  he  is 
hereby,  authorized  to  cause  to  be 
prepared  bronze  medals  of  honor, 
with  suitable  emblematic  devices, 
which  shall  be  bestowed  upon  any 
persons  who  shall  hereafter,  by  ex- 
treme daring,  endanger  their  own 
lives  in  saving,  or  endeavoring  to 
save,  lives  from  any  wreck,  disaster, 
or  grave  accident,  or  in  preventing  or 
endeavoring  to  prevent  such  wreck, 
disaster,  or  grave  accident,  upon  any 
railroad  within  the  United  States 
engaged  in  interstate  commerce: 
Provided,  That  no  award  of  said 
medal  shall  be  made  to  any  person 
until  sufficient  evidence  of  his  de- 
ser\ing  shall  have  been  furnished  and 
placed  on  file,  under  such  regulations 
as  may  be  prescribed  by  the  President 
of  the  United  States. 


Sec.  2.  That  the  President  of  the 
United  States  be,  and  he  is  hereby, 
authorized  to  issue  to  any  person  to 
whom  a  medal  of  honor  may  be 
awarded  under  the  provisions  of 
this  Act  a  rosette  or  knot,  to  be  worn 
in  Ueu  of  the  medal,  and  a  ribbon  to  be 
worn  with  the  medal;  said  rosette 
or  knot  and  ribbon  to  be  each  of  a 
pattern  to  be  prescribed  by  the 
President  of  the  United  States: 
Provided,  That  whenever  a  ribbon 
issued  under  the  provisions  of  this 
Act  shall  have  been  lost,  destroyed, 
or  rendered  unfit  for  use  without 
fault  or  neglect  on  the  part  of  the 
person  to  whom  it  was  issued,  a  new 
ribbon  shall  be  issued  to  such  person 
without  charge  therefor. 

Sec.  3.  That  the  appropriations  for 
the  enforcement  and  execution  of  the 
provisions  of  the  Acts  to  promote 
the  safety  of  employees  and  travelers 
upon  railroads  are  hereby  made  avail- 
able for  carrying  out  the  provisions 
of  this  Act. 

Public,  No.  98,  approved  February 
23,  1905. 


APPENDIX   B. 

EEPOET  OF   HOUSE   JUDICIAL   COMMITTEE    ON" 
FEDERAL  EMPLOYES'  LIABILITY  ACT. 

The  Committee  on  the  Judiciary,  to  whom  was  referred 
House  Bill  20310,  have  had  the  same  under  consideration,  and 
report  it  to  the  House  with  a  recommendation  that  it  pass. 

This  bill  relates  to  common  carriers  by  railroad  engaged  in 
interstate  and  foreign  commerce  and  in  commerce  in  the  Dis- 
trict of  Columbia,  the  Territories,  the  Canal  Zone,  and  other 
possessions  of  the  United  States.  It  is  intended  in  its  scope 
to  cover  all  commerce  to  w^hich  the  regulative  power  of  Con- 
gress extends. 

The  purpose  of  this  bill  is  to  change  the  common-law  lia- 
bility of  employers  of  labor  in  this  line  of  commerce,  for  per- 
sonal injuries  received  by  employees  in  the  service.  It  abol- 
ishes the  strict  common-law  rule  of  liability  which  bars  a  re- 
covery for  the  personal  injury  or  death  of  an  employee,  oc- 
casioned by  the  negligence  of  a  fellow-servant.  It  also  re- 
laxes the  common-law  rule  which  makes  contributory  negli- 
gence a  defense  to  claims  for  such  injuries.  It  permits  a 
recovery  by  an  employee  for  an  injury  caused  by  the  negli- 
gence of  a  co-employee ;  nor  is  such  a  recovery  barred  even 
though  the  injured  one  contributed  by  his  own  negligence 
to  the  injury.  The  amount  of  the  recovery,  however,  is  di- 
minished in  the  same  degree  that  the  negligence  of  the  in- 
jured one  contributed  to  the  injur3^  It  makes  each  party  re- 
sponsible for  his  own  negligence,  and  requires  each  to  bear 
the  burden  thereof.  The  bill  also  provides  that,  to  the  extent 
that  any  contract,  rule,  or  regulation  seeks  to  exempt  the  em- 

557 


558  FEDERAL   EMPLOYERS'   LIABILITY    ACT. 

ployer  from  liability  created  by  this  act,  to  that  extent  such 
contract,  rule  or  regulation  shall  be  void. 

Many  of  the  States  have  already  changed  the  common-law 
rule  in  these  particulars,  and  by  this  bill  it  is  hoped  to  fix  a 
uniform  rule  of  liability  throughout  the  Union  with  reference 
to  the  liability  of  common  carriers  to  their  employees. 

Sections  1  and  2  of  this  bill  provide  that  common  carriers 
by  railroad,  engaged  in  interstate  and  foreign  commerce,  in 
commerce  in  the  District  of  Columbia,  the  Territories,  the 
Panama  Canal  Zone,  and  other  possessions  of  the  United 
States,  shall  be  liable  to  its  employees  for  personal  injuries  re- 
sulting from  its  negligence  or  by  reason  of  any  defect  or  in- 
sufficiency due  to  its  negligence  in  its  roads,  equipment,  or 
methods.  It  is  not  a  new  departure,  but  rather  goes  back  to 
the  old  law  which  made  the  master  liable  for  injury  occasioned 
by  the  negligence  of  his  servant,  either  to  a  co-servant  or  to 
a  third  person. 

The  doctrine  of  fellow-servant  was  first  enunciated  in  Eng- 
land in  1837,  and  since  that  time  it  has  been  generally  fol- 
lowed in  that  country  and  this,  except  where  abrogated  or 
modified  by  statute.  Whatever  reason  may  have  existed  for 
the  doctrine  at  the  time  it  was  first  announced,  it  can  not  be 
said  to  exist  now,  under  modern  methods  of  commerce  by  rail- 
road. It  is  possible  that  a  century  ago,  under  industrial  meth- 
ods and  systems  as  they  then  existed,  co-employees  could  have 
some  influence  over  each  other  tending  to  their  personal  safety. 
It  is  possible  that  they  could  know  something  of  the  habits 
and  characteristics  of  each  other.  Under  present  industrial 
methods  and  systems  this  can  not  be  true.  Then  they  worked 
with  simple  tools  and  were  closely  associated  with  each  other 
in  their  work.  Now  they  work  with  powerful  and  complex 
machinery,  with  widely  diversified  duties,  and  are  distributed 
over  hirger  areas  and  often  widely  separated  from  each  other. 
Under  present  methods,  personal  injuries  have  become  a  pro- 
digious burden  to  the  employees  engaged  in  our  industrial 
and  coirimercial  systems. 

The  master  should  be  made  wholly  responsible  for  injury 


APPENDIX   B.  559 

to  the  servant  by  reason  of  the  negligence  of  a  co-servant. 
He  exercises  the  authority  of  choosing  the  employees  and  if 
made  responsible  for  their  acts  while  in  line  of  duty  he  will 
be  induced  to  exercise  the  highest  degree  of  care  in  selecting 
competent  and  careful  persons  and  will  feel  bound  at  all 
times  to  exercise  over  employees  an  authority  and  influence 
which  will  compel  the  highest  degree  of  care  on  their  part 
for  the  safety  of  each  other  in  the  performance  of  their 
duties. 

These  sections  make  the  employer  liable  for  injury  caused 
by  defects  or  insufficiencies  in  the  roadbed,  tracks,  engines, 
machinery,  and  other  appliances  used  in  the  operation  of  rail- 
roads. Over  these  things  the  employee  has  absolutely  no  au- 
thority. The  employer  has  complete  authority  over  them, 
both  in  their  construction  and  in  their  maintenance.  It  is 
a  very  hard  rule,  indeed,  to  compel  men,  who  by  the  exigen- 
cies and  necessities  of  life  are  bound  to  labor,  to  assume  the 
risks  and  hazards  of  the  employment,  when  these  risks  and 
hazards  could  be  greatly  lessened  by  the  exercise  of  proper 
care  on  the  part  of  the  employer  in  providing  safe  and  proper 
machinery  and  equipment  with  which  the  employee  does  his 
work.  We  believe  that  a  strict  rule  of  liability  of  the  em- 
ployer to  the  employee  for  injuries  received  for  defective 
machinery  will  greatly  lessen  personal  injuries  on  that  ac- 
count. The  common-law  rules  of  fellow-servants  and  assump- 
tion of  risk  still  prevail  in  many  of  the  States,  and  Avithout 
any  apparent  good  reason.  In  recent  years  many  of  the 
countries  of  Europe  have  adopted  new  rules  of  liability, 
which  greatly  relieve  the  harshness  of  the  common  law  as 
it  still  exists  in  some  of  the  States. 

In  1888  England  passed  an  act  which  abolished  the  doctrine 
of  fellow-servant  with  reference  to  the  operation  of  railroad 
trains,  and  in  1897  it  extended  this  law  to  apply  to  many 
of  the  hazardous  employments  of  the  country. 

For  many  years  the  doctrine  in  Germany  has  been  yielding 
step  by  step  to  better  rules,  until  for  the  last  quarter  of  a 


560  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

century  it  does  not  apply  to  any  of  the  hazardous  occupa- 
tions. 

In  1869  Austria  passed  a  law  making  railroad  companies 
liable  for  all  injuries  to  their  employees  except  where  the 
injury  was  due  to  the  victim's  own  negligence. 

The  Code  Napoleon  made  the  employer  answerable  for  all 
injuries  received  by  his  workmen,  and  this  code  is  still  in 
force  in  Belgium  and  Holland. 

Other  European  countries  have  from  time  to  time  made 
laws  fixing  the  liability  of  the  master  for  damages  caused  by 
the  negligent  act  of  his  servant. 

Many  of  the  States  have  passed  laws  modifying  the  doc- 
trine as  changing  conditions  required  it  and  justice  to  the 
employee  demanded  it. 

Alabama  in  1885  eliminated  the  doctrine  so  far  as  it  re- 
lates to  railroads,  and  in  other  particulars. 

Arkansas  in  1893  qualified  the  doctrine  as  to  railroad  em- 
ployment. 

Georgia  in  1856  entirely  abolished  the  doctrine  as  to  rail- 
roads. 

Iowa  abolished  it  as  to  train  operatives  in  1862. 

Kansas  did  the  same  thing  in  1874. 

The  latest  statute  in  Wisconsin  on  the  subject  abolished 
the  fellow-servant  doctrine  as  to  employees  actually  engaged 
in  operating  trains. 

]\Iinnesota  did  the  same  thing  in  1887. 

Florida.  Ohio,  Mississippi,  and  Texas  have  changed  the 
doctrine  to  the  advantage  of  the  employee. 

North  Carolina,  North  Dakota,  and  ^Massachusetts  have 
practically  eliminated  the  doctrine  as  regards  the  operation 
of  railroad  trains. 

Colorado  in  1901  abolished  the  doctrine  in  toto. 

Other  States  have  either  abolished  it  or  modified  it  as  re- 
gards the  operation  of  railroads. 

As  r^omparofl  with  tbe  law  now  in  force  in  other  countries 
anrl  in  many  of  tbo  Stfifos.  the  chancres  made  in  the  law  of 
fellow-servant  by  this  bill  are  not  radical.     The  doctrine  as 


APPENDIX   B.  561 

regards  the  hazardous  occupations  is  being  relegated  every- 
where. 

A  Federal  Statute  of  this  character  will  supplant  the  num- 
erous State  Statutes  on  the  subject  so  far  as  they  relate  to  in- 
terstate commerce.  It  will  create  uniformity  throughout  the 
Union,  and  the  legal  status  of  such  employer's  liability  for 
personal  injuries,  instead  of  being  subject  to  numerous  rules, 
will  be  fixed  by  one  rule  in  all  the  States. 

It  is  thought  that  the  adoption  of  the  rule,  as  provided  in 
this  section,  will  be  conducive  to  greater  care  in  the  operation 
of  railroads.  As  it  is  now,  where  the  doctrine  of  fellow- 
servant  is  in  force,  no  one  is  responsible  for  the  injury  or 
death  of  an  employee  if  caused  by  the  carelessness  of  a  co- 
employee.  The  co-servant  who  is  guilty  of  negligence  result- 
ing in  the  injury  may  be  liable,  but  as  a  rule  he  is  not  re- 
sponsible, and  hence  the  injury  is  not  compensated.  The  em- 
ployee is  not  held  by  the  employer  to  such  strict  rules  of  cau- 
tion for  the  safety  of  his  co-employee,  because  the  employer 
is  not  bound  to  pay  the  damages  in  case  of  injury.  If  he 
were  held  liable  for  damages  for  every  injury  occasiond  by 
the  negligence  of  his  servant,  he  would  impose  the  same  strict 
rules  for  the  safety  of  his  employees  as  he  does  for  the  safety 
of  passengers  and  strangers.  Pie  will  make  the  employment 
of  his  servant  and  his  retention  in  the  service  dependent 
upon  the  exercise  of  higher  care,  and  this  will  be  the  stronger 
inducement  to  the  employee  to  act  with  a  higher  regard  for 
the  safety  of  his  fellow-workmen. 

Section  3  is  a  modification  of  the  common-law  rule  of  con- 
tributory negligence.  It  does  not  abolish  the  law.  Under  its 
provisions  contributory  negligence  still  bars  a  recovery  for 
personal  injury  so  far  as  the  injury  is  due  to  the  contributory 
negligence  of  the  employee,  but  entitles  the  employee  to  re- 
cover for  the  injury  so  far  as  it  is  due  to  the  negligence  of 
the  employer.  It  differs  from  the  Act  passed  by  Congress  in 
June,  1906.  on  this  point,  in  this:  That  law  provided  that 
contributory  negligence  did  not  bar  a  recovery  if  the  negli- 
gence of  the  employee  was  slight  and  that  of  the  employer 


562  FEDERAL   EMPLOYERS'    LL^ILITY   ACT. 

was  gross  in  comparison.  That  law  modified  the  common- 
law  rule  of  contributory  negligence  and  also  contained  a  mod- 
ification of  the  common-law  doctrine  of  comparative  negli- 
gence. We  are  unable  to  see  any  justification  whatever  in  the 
common-law  doctrine  of  comparative  negligence  anywhere. 
It  is  the  only  rule  of  negligence  that  permits  an  employee  to 
recover  damages  for  injury  to  which  his  own  negligence  con- 
tributed. Comparative  negligence  is  absolutely  wrong  in 
principle,  for  the  reason  that  it  permits  the  employee  to  re- 
cover full  damages  for  injury,  even  though  his  own  negligence 
contributed  to  it.  It  is  true,  as  the  law  states  it,  he  can  only 
recover  damages  when  his  contributory  negligence  is  slight 
and  that  of  the  employer  is  gross  in  comparison.  But  that 
rule  does  not  undertake  to  diminish  the  verdict  in  proportion 
to  the  negligence  of  the  employee.  This  may  be  said  in  behalf 
of  the  doctrine  of  contributory  negligence  in  its  common-law 
purity,  and  it  is  the  only  reason,  so  far  as  we  know,  that  has 
ever  been  assigned  for  its  existence :  It  tends  to  make  the 
employee  exercise  a  higher  degree  of  care  for  his  own  safety. 

If  that  is  a  good  reason  for  the  existence  of  that  rule,  then 
we  believe  that  Section  3  of  this  bill  is  a  very  great  improve- 
ment on  that  doctrine,  for  the  reason  that  it  imposes  the  bur- 
den of  the  employer's  negligence  on  the  employer,  and  he 
will  thus  be  induced  to  exercise  higher  care  in  the  selection 
of  his  employees,  and  in  other  ways,  for  the  safety  of  persons 
in  his  employment.  If  the  law  imposes  on  the  employee  the 
burden  of  his  owii  negligence,  that  is  certainly  sufficient,  and 
that  is  what  this  section  seeks  to  do,  and  it  also  seeks  to  im- 
pose upon  the  employer  the  burden  of  his  negligence.  It 
provides  that  contributory  negligence  shall  not  bar  a  recov- 
ery for  injury  due  to  the  negligence  of  the  employer.  It  pro- 
vides that  the  jury  shall  diminish  the  damages  sufl^ered  by 
the  injured  employee  in  proportion  to  the  amount  of  negli- 
gence attril)utal)le  to  such  employee. 

It  is  urged  by  some  that  such  a  provision  is  impracticable 
of  administration  and  that  juries  will  not  divide  the  damages 
in  accordance  with  the  negligence  committed  by  each.     The 


APPENDIX    B.  563 

same  objection  can  be  urged  against  the  provision  of  the  bill 
passed  by  Congress  in  1906,  which  provided  that  only  slight 
negligence  should  not  bar  a  recovery,  but  that  the  jury  should 
diminish  damages  in  proportion  to  such  slight  negligence. 
Under  that  provision  the  jury  would  have  the  same  difficulty, 
if  any,  in  apportioning  the  damages  according  to  the  negli- 
gence of  each  party.  We  submit,  further,  that  this  section 
of  the  bill  is  free  from  the  very  unjust  principle  contained  in. 
the  common-law  doctrine  of  comparative  negligence  which  al- 
lowed the  employee  to  recover  full  damages  for  injury  to 
which  his  own  negligence  contributed  in  some  degree.  It  is 
not  a  just  criticism  of  a  law,  conceding  the  righteousness  of 
its  principles,  to  say  that  it  is  impracticable  of  administra- 
tion. We  submit  that  the  principle  in  this  section  is  ideal 
justice,  against  which  no  fair  argument  can  be  made.  It  is 
better  that  legislatures  pass  just  and  fair  laws,  even  though 
they  may  be  difficult  of  administration  by  the  courts,  rather 
than  to  pass  unjust  and  unfair  laws  because  they  may  be  more 
easily  administered  by  the  courts.  Courts  ought  not  to  be 
compelled  to  administer  the  common-law  doctrine  of  con- 
tributory negligence,  which  puts  upon  the  employee  the  whole 
burden  of  negligence,  even  though  his  negligence  was  slight 
and  that  of  the  employer  was  gross.  That  law  might  to  some 
extent  induce  higher  care  on  the  part  of  the  employee,  but 
in  the  same  degree,  and  for  the  same  reason,  it  induces  the 
employer  to  have  less  regard  and  less  care  for  the  safety  of 
his  employees. 

It  is  urged  that  juries  under  this  law  will  wholly  ignore 
the  negligence  committed  by  the  employee  and  charge  all  the 
injury  to  the  negligence  of  the  employer.  We  do  not  believe 
that  this  will  be  the  result  of  the  administration  of  this  sec- 
tion. We  believe  it  will  appeal  to  juries  as  eminently  just 
and  they  will  undertake  to  enforce  it  literally  to  the  best  of 
their  skill.  If  juries  under  the  common-law  rule  of  contribu- 
tory negligence  have  been  disposed  to  assess  damages  in  spite 
of  the  fact  that  the  defendant  contributed  to  the  injury  by 
his  own  negligence,  it  may  be  said  that  the  jury  recognizes 


56-i  FEDERAL    EMPLOYERS'    LIABirjTY    ACT. 

the  injustice  of  the  law  and  undertakes  to  correct  it  by  what 
they  consider  a  just  and  righteous  verdict.  There  is  nothing 
in  this  law  that  will  induce  such  a  sentiment  in  the  minds 
of  the  jury,  but  it  will  appeal  to  them  as  the  true  principle, 
and,  in  our  judgment,  they  will  seek  to  apply  it  fairly  in  the 
courts. 

Beach,  in  his  work  on  contributory  Negligence,  page  136, 
comments  on  the  law  as  provided  in  this  section  as  follows : 

"jMuch  may  be  said  in  favor  of  the  rule  which  counts  the 
plaintiff's  negligence  in  mitigation  of  the  damages  in  those 
cases  which  frequently  arise,  wherein,  on  one  hand,  a  real 
injury  has  been  suffered  by  the  plaintiff  by  reason  of  the  cul- 
pable negligence  of  the  defendant,  and  yet,  where,  on  the 
other  hand,  the  plaintiff's  conduct  was  such  as  to  some  ex- 
tent contribute  to  the  injury,  but  in  so  small  a  degree  that 
to  impose  upon  him  the  entire  loss  seems  not  to  take  a  just 
account  of  the  defendant's  negligence.  In  those  cases,  which 
may  be  denominated  'hard  cases,'  the  Georgia  and  Tennessee 
rule  in  mitigation  of  damages  without  necessarily  sacrificing 
the  principle  upon  which  the  law  as  to  contributory  negli- 
gence rests  is  a  rule  against  which,  in  respect  of  justice  and 
humanity,  nothing  can  be  said.  Where  the  severity  of  the 
general  rule  might  refuse  the  plaintiff  any  remedy  whatever, 
as  the  sheer  injustice  of  the  rule,  as  laid  down  in  Davis  v. 
Mann,  would  impose  the  whole  liability  upon  the  defendant, 
it  is  quite  possible  to  conceive  a  case  where  the  application 
of  the  rule  which  mitigates  the  damages  in  proportion  to  the 
plaintiff's  misconduct,  but  does  not  decline  to  impose  them 
at  all,  would  work  substantial  justice  between  the  parties." 

i^hoarman  and  "Rodfield  on  the  Law  of  Negligence,  fifth  edi- 
tion, page  158,  in  speaking  of  this  rule,  say: 

"This  is  substantially  an  adoption  of  the  admiralty  rule, 
whieh  is  f^ortainly  nearer  ideal  justice,  if  juries  could  be 
trusted  to  act  upon  it." 

The  United  States  has  adhered  much  closer  to  the  common- 
law  doctrine  of  contributory  negligence  than  the  leading 
countries  o-f  Europe.     The  laws  of  England,  Germany,  and 


APPENDIX  B. 


565 


Italy  go  much  further  to  discharge  the  employee  from  the 
responsibility  of  his  own  act  than  does  the  common-law  doc- 
trine of  comparative  negligence. 

The  laws  of  France,  Switzerland,  and  Russia  are  in  prac- 
tical accord  with  the  provisions  of  section  3  of  this  bill. 

The  rule  provided  for  in  this  section  is  recognized  to  some 
extent  in  this  country.  Maryland  and  some  of  the  other 
States  have  passed  statutes  seeking  to  divide  the  responsibility 
where  both  parties  are  guilty  of  negligence. 

The  provisions  of  this  section  are  certainly  just.  What  can 
be  more  fair  than  that  each  party  shall  suffer  the  conse- 
quences of  his  own  carelessness?  It  certainly  appeals  more 
strongly  to  the  fair  mind  than  the  proposition  that  the  em- 
ployee shall  have  no  redress  whatever,  even  though  his  injury 
is  due  mainly  to  the  negligence  of  another.  As  a  consequence 
of  this  legislation,  we  believe  there  will  be  fewer  accidents. 
By  the  responsibility  imposed,  both  parties  will  be  induced  to 
the  exercise  of  greater  diligence,  and  as  a  result  the  public 
will  travel  and  property  will  be  transported  in  greater  safety. 

The  proviso  in  section  3  is  to  the  effect  that  contributory 
negligence  shall  not  be  charged  to  the  employee  if  he  is  in- 
jured or  killed  by  reason  of  the  violation,  by  the  employer,  of 
any  statute  enacted  for  the  safety  of  employees.  The  effect 
of  the  provision  is  to  make  a  violation  of  such  a  statute  neg- 
ligence per  se  on  the  part  of  the  employer.  The  courts  of 
some  States  have  held  this  as  a  principle  of  the  common-law. 
Other  States  have  enacted  it  into  statute. 

Section  4  provides,  in  effect,  that  the  employee  shall  not  be 
charged  with  the  assumption  of  risk  in  case  he  is  injured  by 
reason  of  the  violation  of  the  employer  of  a  statute  enacted 
for  the  safety  of  employees.  This  section  likewise  makes  the 
violation  of  such  a  statute  negligence  per  se  on  the  part  of  the 
employer,  and  is  already  the  law  in  many  of  the  States  of  the 
Union. 

Section  5  renders  void  any  contract  or  rule  whereby  a  com- 
mon carrier  seeks  to  exempt  itself  from  liability  created  by 
this  act.    Many  of  the  States  have  enacted  laws  making  void 


566  FEDERAL   EMPLOYERS*    LIABILITY   ACT. 

sucli  contracts  and  regulations,  and,  so  far  as  we  are  informed, 
these  statutes  have  been  sustained  by  the  courts.  The  fol- 
lowing States  have  incorporated  into  their  statutes  language 
similar  to  the  language  contained  in  this  bill  on  this  question : 
Arkansas,  California,  Colorado,  Florida,  Georgia,  Indiana, 
Iowa,  Massachusetts,  Minnesota,  Mississippi,  Montana,  Ne- 
braska, Nevada,  New  York,  North  Carolina,  North  Dalcota, 
Ohio,  Oregon,  South  Carolina,  South  Dakota,  Texas,  Virginia, 
Wisconsin,  and  Wyoming.  The  Supreme  Court  of  Ohio  held 
that  a  contract  exempting  a  railroad  company  from  liability 
for  injuries  was  void  under  the  common  law  as  against  public 
safety.  Likewise  the  Supreme  Court  of  Arkansas  and  the 
court  of  appeals  of  Virginia  have  held  the  same  doctrine.  The 
Courts  of  New  York  have  held  that  such  contracts,  though 
based  on  a  consideration,  are  void  as  against  public  policy. 
The  statutes  of  Ohio  and  Iowa  fixing  the  liability  of  employer 
to  employees,  containing  provisions  similar  to  this  section, 
have  been  held  constitutional  by  the  Federal  Courts,  although 
the  cases  in  which  these  decisions  were  rendered  did  not  ex- 
pressly turn  on  that  question.  The  courts  of  Alabama  have 
held  such  contracts  void,  regardless  of  statute.  In  Georgia 
•and  Pennsylvania  such  contracts  have  been  held  valid,  but 
since  the  decision  in  Georgia  that  State  has  adopted  a  statute 
making  them  void. 

This  provision  is  necessary  in  order  to  make  effective  sec- 
tions 1  and  2  of  the  bill.  Some  of  the  railroads  of  the  coun- 
try insist  on  a  contract  with  their  employees  discharging  the 
company  from  liability  for  personal  injuries. 

In  any  event,  the  employees  of  many  of  the  common  car- 
riers of  the  country  are  to-day  working  under  a  contract  of 
employment  which  by  its  terms  releases  the  company  from 
liability  for  damages  arising  out  of  the  negligence  of  other 
employees.  As  an  illustration  we  quote  one  paragraph  from 
a  blank  form  of  application  for  a  situation  with  the  xVmerican 
Express  Company,  and  entitled  "Rules  governing  employ- 
ment by  this  company:" 

"I  do  further  agree,  in  consideration  of  my  employment  by 


APPENDIX   B.  567 

said  American  Express  Company,  that  I  will  assume  all  risks 
of  accident  or  injury  which  I  shall  meet  with  or  sustain  in 
the  course  of  such  employment,  whether  occasioned  by  the 
negligence  of  said  company  or  any  of  its  members,  officers, 
agents,  or  employees,  or  otherwise;  and  that  in  case  I  shall 
at  any  time  suffer  any  such  injury,  I  will  at  once  execute  and 
deliver  to  said  company  a  good  and  sufficient  release,  under 
my  hand  and  seal,  of  all  claims,  demands,  and  causes  of  ac- 
tion arising  out  of  such  injury  or  connected  therewith  or  re- 
sulting therefrom;  and  I  hereby  bind  myself,  my  heirs,  ex- 
ecutors, and  administrators,  with  the  payment  to  said  express 
company,  on  demand,  of  any  sum  which  it  may  be  compelled 
to  pay  in  consequence  of  any  such  claim  or  in  defending  the 
same,  including  all  counsel  fees  and  expenses  of  litigation 
connected  therewith. ' ' 

"While  many  of  the  States  have  enacted  statutes  making 
such  contracts  void,  yet  the  United  States  Supreme  Court, 
there  being  no  Federal  statute  on  the  subject,  have  held  a 
similar  contract  valid  in  the  case  of  Voigt  v.  Baltimore  and 
Ohio  Southivestern  Railroad  (176  U.  S.,  p.  498).  In  this  case 
the  railroad  company  entered  into  a  contract  with  an  express 
company  whereby  it  agreed  to  carry  the  business  of  the  ex- 
press company,  to  furnish  it  with  cars  and  certain  facilities 
over  its  road,  and  to  carry  its  messengers,  in  consideration 
of  which  the  express  company  agreed  to  save  harmless  the 
railroad  company  for  all  claim  for  damages  for  personal  in- 
jury received  by  its  employees,  whether  the  injuries  were 
caused  by  the  negligence  of  the  railroad  company  or  other- 
wise. 

Voigt  entered  the  service  of  the  express  company  as  mes- 
senger, and  by  the  contract  of  his  employment  he  agreed  to 
assume  all  the  risk  of  accident  and  injury  and  to  indemnify 
and  save  harmless  the  express  company  from  all  claims  that 
might  be  made  against  it  for  injury  he  might  suffer,  whether 
resulting  from  negligence  or  otherwise,  and  to  execute  a  re- 
lease for  the  same. 

Voigt  was  injured  and  sued.    The  court  said : 


568  FEDERAL   EMPLOYERS'    LIABILITY    ACT, 

"He  was  not  constrained  to  enter  into  the  contract  where- 
by the  railroad  company  was  exonerated  from  liability  to  him, 
but  entered  into  the  same  freely  and  voluntarily,  and  ob- 
tained the  benefit  of  it  by  securing  his  appointment  as  such 
messenger,  and  that  such  a  contract  did  not  contravene  pub- 
lic policy." 

In  the  case  of  O'Brien  v.  C.  and  N.  W.  By.  Co.  (Fed.  Kep. 
vol.  116,  p.  502),  which  involved  the  statute  of  Iowa  making 
such  contracts  invalid,  the  court  said: 

"That  while  such  contracts  would  be  effective  to  protect 
the  railroad  company  from  liability  at  common-law,  under 
such  statutory  provisions  declaratory  of  the  public  policy 
of  the  State  they  were  invalid  and  constituted  no  defense  to 
an  action  against  it  for  the  death  of  the  messenger  occurring 
in  the  State  of  Iowa  by  reason  of  the  wrecking  of  the  express 
car  in  which  he  was  employed,  through  the  negligence  and 
want  of  ordinary  care  of  defendant  or  its  servants,  whether 
the  messenger  be  regarded  as  an  employee  of  the  defendant 
or  not." 

This  section  of  the  bill,  however,  provides  that  the  common 
carrier  may  set  off  against  any  claim  for  damages  whatever 
it  has  contributed  toward  such  insurance,  relief  benefit,  or 
indemnity  that  may  have  been  paid  to  the  injured  employee, 
which  would  seem  to  be  entirely  fair  and  all  that  ought  to  be 
required  of  the  employee. 

Some  of  the  roads  of  the  country  have  established  what  are 
called  "relief  departments,"  which  seek  to  operate  a  species 
of  insurances  for  the  employee  against  the  hazards  of  the  em- 
ployment, but,  so  far  as  we  know,  all  their  forms  of  contracts, 
used  by  these  relief  departments  to  insure  the  employee,  dis- 
charge the  company  from  every  possible  liability  for  personal 
injuries  to  the  employee.  This  release  is  made  by  its  terms  of 
agreement  in  consideration  of  the  contributions  of  the  com- 
pany to  the  relief  fund. 

The  following  is  one  of  the  paragraphs  from  the  form  of 
application  for  niemborship  in  the  relief  department  used  by 
the  Baltimore  and  Ohio  Railroad  Company: 


APPENDIX  B.  569 

"I  further  agree  that,  in  consideration  of  the  contributions 
of  said  company  to  the  relief  department  and  of  the  guar- 
anty by  it  of  the  payment  of  the  benefits  aforesaid,  the  ac- 
ceptance of  benefits  from  such  relief  feature  for  the  injury  or 
death  shall  operate  as  a  release  of  all  claims  against  said  com- 
pany, or  any  company  owning  or  operating  its  branches  or 
divisions,  or  any  company  over  whose  railroad,  right  of  way, 
or  property  the  said  Baltimore  and  Ohio  Railroad  Company 
or  any  company  owning  or  operating  its  branches  or  divisions 
shall  have  the  right  to  run  or  operate  its  engines  or  cars  or 
send  its  employees  in  the  performance  of  their  duty,  for  dam- 
ages by  reason  of  such  injury  or  death  which  could  be  made 
by  or  through  me ;  and  that  the  superintendent  may  require, 
as  a  condition  precedent  to  the  payment  of  such  benefits,  that 
all  acts  by  him  deemed  appropriate  or  necessary  to  effect  the 
full  release  and  discharge  of  the  said  companies  from  all  such 
claims  be  done  by  those  who  might  bring  suit  for  damages 
by  reason  of  such  injury  or  death ;  and  also  that  the  bringing 
of  such  a  suit  by  me,  my  beneficiary  or  legal  representative, 
or  for  the  use  of  my  beneficiary  alone,  or  with  others,  or  the 
payment  by  any  of  the  companies  aforesaid  of  damages  for 
such  injury  or  death  recovered  in  any  suit  or  determined  by 
a  compromise  or  any  costs  incurred  therein,  shall  operate  as 
a  release  in  full  to  the  relief  department  of  all  claims  by  rea- 
son of  membership  therein." 

The  form  of  other  application  used  by  other  companies  are 
similar  in  terms  to  the  cited,  and  make  acceptance  of  benefits 
from  said  fund  a  release  of  all  claims  for  damages  for  injury 
or  death. 

By  an  act  concerning  common  carriers  engaged  in  inter- 
state commerce  and  .their  employees,  approved  June  1,  1898, 
knowTi  as  the  "arbitration  law,"  it  is  made  a  misdemeanor 
on  the  part  of  any  employer  subject  to  the  provisions  of  that 
act: 

"To  require  any  employee  or  any  person  seeking  employ- 
ment, as  a  condition  of  such  employment,  to  enter  into  a  con- 
tract whereby  such  employee  or  applicant  for  employment 


570  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 

shall  agree  to  contribute  to  any  fund  for  charitable,  sociable, 
or  beneficial  purposes;  to  release  such  employer  from  legal 
liability  for  any  personal  injury  by  reason  of  any  benefit 
arising  from  the  employer's  contribution  to  such  fund." 

We  believe  this  bill  meets  the  objections  of  the  Supreme 
Court  to  the  act  of  June  11,  1906,  knowTi  as  the  ''employers' 
liability  act"  in  the  case  of  Howard,  administratrix  etc.,  v. 
Illinois  Central  Railroad  Company,  et  al.  6  Cong.  Record,  1st 
Sess.  pp.  4434-4436. 


HOUSE  REPORT  ON  AMEND- 
MENTS OF  1910. 


LIABILITY  OF  COMMON  CARRIERS  TO  THEIR  EM- 
PLOYEES IN  CERTAIN  CASES. 

Febeuakt  22,   in  10. — Referred  to  the  House  Calendar  and  ordered  to  be 

printed. 

Mr.   Sterling,  from  the  Committee  on  the  Judiciary,  sub- 
mitted the  following 

REPORT. 

[To  accompany  H.  R.  17263.] 

The  Committee  on  the  Judiciary,  to  whom  was  referred 
the  bill  (H.  R.  17263)  to  amend  an  act  entitled,  "An  act 
relating  to  the  liability  of  common  carriers  by  railroad  to 
their  employees  in  certain  cases,"  approved  April  22,  1908, 
having  had  the  same  under  consideration,  beg  leave  to 
report  it  to  the  House  witli  a  recommendation  that  the 
,bill  do  pass. 

In  considering  the  advisability  of  amending  the  act  enti- 
tled "An  act  relating  to  the  liability  of  common  carriers  by 


APPENDIX   B.  571 

railroads  to  their  employees  in  certain  cases,"  approved 
April  22,  1908,  it  is  important  at  the  outset  to  understand 
that  the  purpose  of  Congress  in  the  passage  of  this  act  was 
to  extend  further  protection  to  employees.  This  was  its 
manifest  purpose,  as  is  apparent  from  a  consideration  of 
the  circumstances  of  its  enactment.  It  is  manifest  from  a 
consideration  of  the  reports,  both  of  the  Senate  and  House 
committees,  when  the  measure  was  pending  before  those 
bodies  prior  to  its  enactment,  that  the  purpose  of  the  statute 
was  to  extend  and  enlarge  the  remedy  provided  by  law  to 
employees  engaged  in  interstate  commerce  in  cases  of  death 
or  injury  to  such  employees  while  engaged  in  such  service. 
No  purpose  or  intent  on  the  part  of  Congress  can  be  found 
to  limit  or  to  take  away  from  such  an  employee  any  right 
theretofore  existing  by  which  such  employees  were  entitled 
to  a  more  extended  remedy  than  that  conferred  upon  them 
by  the  act. 

The  effect  of  decisions  of  cases  so  far  adjudicated  under 
the  act  has  been  in  general  to  recognize  the  true  intent  of 
Congress  and  to  extend  and  make  more  amj^le  the  right  to 
recover  damages  for  death  or  injury  to  interstate  servants, 
yet  in  some  particulars  its  operation  has  been  to  limit  a 
recovery  which  otherwise  would  have  been  open  to  the  em- 
ployee or  his  representative. 

One  result  of  the  passage  of  the  law  may  be  to  nullify 
state  laws  affording  a  remedy  in  certain  cases  for  death  or 
injury  in  railroad  service.  The  state  laws  which  had  been 
operative  and  which  were  valid  even  in  their  application 
to  those  engaged  in  service  in  interstate  commerce  appear 
to  have  been  rendered,  as  to  interstate  servants,  ineffective 
when  Congress  acted  upon  this  subject.  That  this  seems  to 
have  been  the  effect  of  the  passage  of  this  law  was  expressly 
decided  in  a  well-considered  opinion  by  Judge  Rogers  in 
the  case  of  Fulgam  v.  IMidland  Valley  R.  Co.  (167  Fed.,  660, 
p.  662)  : 

Tt  is  clear  that  the  act  of  April  22,  1908,  supra,  superseded  and  took 
the  place  of  all  state  statutes  regulating  relations  of  employers  and 
employees  engaged  in  interstate  commerce  by  railroads.     It  covered  not 


572  FEDERAL   EMPLOYERS'    LIABILITY    ACT, 

only  injuries  sustained  by  employees  engaged  in  that  commerce  resulting 
from  the  negligence  of  the  master  and  his  servants,  and  from  defects  in 
tlie  designated  instrumentalities  in  use  in  that  commerce,  but  also  dealt 
with  contributoi-y  and  comparative  negligence  and  assumed  risk,  making, 
in  certain  cases  at  least,  the  master  an  insurer  of  the  safety  of  the 
servant  while  in  his  employment  in  that  commerce.  It  covers  and  over- 
laps the  whole  state  legislation,  and  is  therefore  exclusive. 

All  state  legislation  on  that  subject  must  give  way  before  that  act 
(Miss.  Railroad  Commission  v.  111.  Cent.  E.  R.  Co.,  203  U.  S.,  335;  27 
Sup.  Ct.,  90:  51  L.  Ed..  209;  Sherlock  et  al.  v.  Ailing,  administrator 
93  U.  S.,  104;  23  L.  Ed.,  819.)  Tliese  last  cases  serve  to  show  thae, 
until  Congress  has  acted  with  reference  to  the  regulation  of  interstate 
commerce,  state  statutes  regailating  the  relations  of  master  and  servant 
and  incidentally  affecting  interstate  commerce,  but  not  regulating  or 
obstructing  it,  may  be  given  effect;  but  when  Congress  has  acted  upon  a 
given  subject  state  legislation  must  yield. 

In  Galf,  Colorado,  etc.,  Railroad  Co.  v.  Hefley  (158  U.  S., 
Q9;  19  Sup.  Ct.,  804;  39  L.  Ed.,  910)  the  court  said: 

"When  a  state  statute  and  a  federal  statute  operate  upon  the  same 
subject-matter,  and  prescribe  diti'erent  rules  concerning  it,  the  state 
statute  must  give  way." 

"When  Congress  acted  upon  the  subject  of  the  regulation 
of  the  liability  of  interstate  carriers  for  injuries  to  their 
servants  engaged  in  interstate  commerce,  "the  State  was 
thereby  precluded  from  enacting  any  law  of  that  sort  which 
would  have  that  effect,  for  the  field  of  policy  and  legisla- 
tion was  thus  assumed  by  Congress  and  withdrawn  from 
State  competency."  (Wisconsin  v.  C,  M.  &  St.  P.  Ry.  Co., 
117  N.  W.,  686.) 

In  the  course  of  his  opinion  in  the  case  above  cited.  Justice 
Dodge,  delivering  the  unanimous  opinion  of  the  Supreme 
Court  of  Wisconsin,  very  clearly  stated  this  doctrine  and 
the  authority  upon  which  it  was  based,  as  follows: 

Within  the  field  of  authorized  congressional  action  the  federal  power 
must,  in  the  nature  of  things,  be  supreme  in  all  parts  of  the  United 
States.  "This  Constitution,  and  the  laws  of  the  United  States  whicii 
shall  be  niade  in  pursuance  tliereof  *  *  *  shall  be  the  supreme  law 
of  the  land;  and  the  judges  in  every  State  shall  be  bound  thereby,  any 
thing  in  the  constitution  or  laws  of  any  state  to  the  contraiy  not- 
withstanding." (Art.  VI,  par.  2,  Const.  U.  S.).  In  Cooley  v. 
Ik>ard  of  Wardens  (12  How.,  299,  318),  it  was  said  of  this 
class  of  legislation:  "It  is  not  the  mere  existence  of  such  power,  but 
its  exercise  by  Congress,  which  may  be  incompatible  with  the  exercise  of 
the  same  power  by  the  States,  and  that  the  States  may  legislate  in  the 


APPENDIX    B. 


573 


absence  of  congressional  legislation."  In  Pennsylvania  v.  Wheeling, 
etc.,  Co.  (18  How.,  431),  where  a  state  law  authorized  the  building 
of  a  bridge  over  a  navigable  water,  is  was  declared  that  even  in  the 
matter  of  a  bridge,  "if  Congress  chooses  to  act,  its  action  necessarily 
precludes  the  action  of  the  State." 

In  United  States  v.  Colorado  &  N.  W.  R.  Co.  (157  Fed. 
Rep.,  321,  330),  Sanborn,  J.,  remarks: 

"The  Constitution  reserved  to  the  nation  the  unlimited  power  to  regu- 
late interstate  and  foreign  commerce,  and  if  that  power  can  not  bj 
effectually  exercised  without  affecting  intrastate  commerce,  tiien  Con- 
gress may  undoubtedly  in  that  sense  regulate  intrastate  commerce  so 
far  as  necessary  in  order  to  regulate  interstate  commerce  fully  and 
effectually.  *  *  *  That  power  is  not  subordinate,  but  is  paramount 
to  all  the  powers  of  the  States.  If  its  independent  and  lawful  exerc'ise 
of  this  congressional  power  and  the  attempted  exercise  by  a  State  of 
any  of  its  powers  impinge  or  conflict,  the  former  must  prevail  and  the 
latter  must  give  way."  (See  also  Gibbona  v.  Ogden,  9  Wheat.,  1,  209, 
210.) 

It  will  be  observed  from  these  utterances  that  it  is  not  a  mere  ques- 
tion of  conflicting  laws  in  the  two  jurisdictions,  so  that  the  law  of  a 
State  will  be  valid  so  far  as  not  antagonistic  to  a  federal  law.  The 
question  is  more  properly  one  of  jurisdiction  over  the  subject,  the  hold- 
ing being  that  within  the  second  class  of  subjects  above  outlined  silence 
of  Congress  is  deemed  a  relegation  to  the  States  of  such  jurisdiction 
and  authority,  but  action  by  Congress  upon  the  particular  subject  is 
deemed  an  assertion  of  the  federal  power,  a  declaration  of  the  policy 
that  the  subject  shall  be  under  federal  and  not  state  regulation,  anJ 
that,  therefore,  the  power  shall  no  longer  rest  in  the  State  to  exercise 
that  authority  which  by  the  Constitution  of  the  United  States  was  sur- 
rendered to  the  Federal  Government  when  and  if  Congress  deemed  its 
exercise  advisable. 

In  a  recent  decision  of  the  court  of  civil  appeals,  State  of 
Texas,  the  court  unanimously  stated  this  doctrine  as  fol- 
lows: 

It  is  well  settled  that  the  power  of  Congress  to  regulate  interstate 
commerce  under  tlie  provisions  of  the  Constitution  before  mentioned  is 
plenary  and  includes  the  power  to  prescribe  the  qualifications,  duties, 
and  liabilities  of  employees  of  railway  companies  engaged  in  interstate 
commerce,  and  any  legislation  by  CongTess  on  such  subject  supersedes 
any  state  law  upon  the  same  subject.  (Railway  Co.  v.  Alabama,  128 
U.  S.,  99;  Howard  v.  Railway  Co.,  207  U.  S.,  463.) 

The  constitutional  right  of  Congress  to  legislate  upon  this  subject 
having  been  exercised  by  that  body,  the  right  of  the  State  to  invade 
this  field  of  legislation  ceased,  or,  at  all  events,  no  act  of  a  state  legis- 
lature in  conflict  with  the  act  of  Congress  u[X)n  the  same  subject  can  be 
held  valid.  The  supreme  courts  of  Missouri  and  Wisconsin  in  passing 
upon  the  vailidity  of  statutes  of  said  States  similar  to  the  act  we  are 
considering,  hold  such  statutes  void  upon  the  ground  of  conflict  with 
the  act  of  Congress  before  mentioned.  (State  v.  Mo.  Pac.  Rv.  Co.,  Ill 
S.  W.,  500;  State  v.  C.  M.  &  St.  P.  Ry.  Co.,  117  N.  W.,  686.) 


574  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 

Judge  Cooley,  in  his  work  on  Constitutional  Limitations, 

seventh  edition,  856,  said : 

It  is  not  doubted  that  Congress  has  the  power  to  go  beyond  the 
general  regulation  of  oonmierce  which  it  is  accustomed  to  establish,  and 
to  descend  to  the  most  minute  directions,  if  it  shall  be  deemed  advisable; 
and  that  to  wliatevcr  extent  ground  shall  be  covered  by  these  directions, 
the  exercise  of  state  power  is  excluded. 

It  is  therefore  undoubtedly  the  law  that  congressional 
action  upon  the  liability  of  carriers  engaged  in  interstate 
commerce,  for  injuries  to  their  employees,  supersedes  all 
state  legislation  upon  the  same  subject,  and  renders  them, 
as  long  as  the  Federal  law  remains  in  operation,  of  no  avail 
as  providing  a  legal  remedy. 

Many  of  the  States  provide  by  statute  for  the  survival  of 
any  action  which  the  deceased  may  have  had  for  the  injury 
to  his  estate,  and  for  any  expenditures  during  his  lifetime 
resulting  from  the  injury. 

In  the  phraseology  of  the  existing  Employers'  Liability 
Act — that  is,  the  Act  of  April  22,  1908 — the  expression  used 
is,  as  to  the  question  now  under  consideration: 

Shall  be  liable  in  damages  *  *  *  in  case  of  the  death  of  such 
employee,  to  his  or  her  personal  representative  for  the  benefit  of  the 
surviving  widow  or  husband  and  children  of  such  employee;  and  if 
none,  then  of  such  employee's  parents;  and  if  none,  then  of  the  next 
of  kin  dependent  iipon  such  employee,  for  such  injury  or  death  result- 
ing in  whole  or  in  part  from  the  negligence  of  any  of  its  officers,  agents, 
employees,     *     *     *." 

In  the  case  of  Fulgam  v.  Midland  Valley  R.  R.  Company, 
hereinbefore  cited,  the  court  said: 

In  the  opinion  of  the  court,  right  of  action  given  to  the  injured 
employee  by  the  act  of  April  22,  1908,  does  not  svirvive  to  his  personaJ 
representative  in  the  event  of  liis  deatli,  but,  at  common  law,  perishes 
with  the  injured  person. 

In  the  case  of  Walsh,  admx.,  v.  New  York,  New  Haven 
and  Hartford  Railroad  Company,  Circuit  Judge  Lowell, 
who  delivered  the  opinion  of  the  court,  said  in  a  case  arising 
under  the  Employers'  Liability  Act  of  April  22,  1908,  after 
quoting  the  case  of  Fulgam  v.  Midland  Valley  R.  R.  Co. 
(167  Fed.,  660)  : 


APPENDIX   B.  575 

The  defendant  has  further  demurred  to  counts  one  and  four,  contend- 
ing that  the  employee's  cause  of  action  to  recover  for  his  conscious 
su&ering  did  not  survive  to  his  administratrix,  although  the  existence 
of  some  of  the  statutory  relatives  was  alleged.  As  the  cause  of  action 
is  given  by  a  federal  statute,  this  court  can  not  have  recourse  to  a 
state  statute  in  order  to  determine  whether  the  cause  of  action  survives 
or  not.  (Schreiber  v.  Sharpless,  110  U.  S.,  76,  80;  B.  &  0.  R.  R.  v.  Joy 
173  U.  S.,  226,  230;  U.  S.  v.  DeGoer,  38  Fed.,  80;  U.  S.  v.  Riley,  lul 
Fed.,  275.)  Revised  Statutes,  section  955,  provides  that  "When  either 
of  the  parties,  whether  plaintiff  or  petitioner,  or  defendant,  in  any  suit 
in  any  court  of  the  United  States,  dies  before  final  judgment,  the 
executor  or  administrator  of  such  deceased  party  may,  in  case  the  cause 
of  action  survives  by  law,  prosecute  or  defend  any  such  suit  to  final  judg- 
ment." This  section  does  not  itself  provide  what  causes  of  action  shall 
survive,  but  in  the  absence  of  other  controlling  statute  leaves  the  matter 
to  the  common  law.  In  the  case  at  bar,  therefore,  the  state  otatutes 
are  inapplicable.  There  is  no  general  federal  statute,  and  the  particular 
statute  in  question,  the  act  of  1908,  says  nothing  about  survival. 

Tlius  remitted  to  the  common  law,  at  which  survi\ial  is  out  of  the 
question,  we  must  here  hold  that  the  cause  of  action  did  not  survive 
and  so  that  counts  one  and  four  are  demurrable.  ( Fulgam  v.  Midland 
Valley  Co.,  167  Fed.,  660.)  The  court  is  justified  in  saying  that  this 
result  has  been  reached  with  reluctance.  Tlie  maxim  "Actio  personalis 
moritur  cum  persona"  has  not  always  commended  itself.  (Pollock  on 
Torts,  Webb's  ed.,  p.  71.)  The  survival  of  the  cause  of  action  in  this 
case  is  allowed  by  the  statutes  of  many  States.  That  one  who  has 
suffered  in  body  and  in  purse  by  the  fault  of  another,  and  so  has  a 
cause  of  action  against  the  wrongdoer,  should,  as  to  his  own  estate,  be 
deprived  of  this  remedy  by  the  delays  of  the  law,  or  without  such 
delay,  by  his  death,  before  or  after  action  brought,  whether  connected 
or  unconnected  with  his  first  injury,  seems  to  me,  as  to  Sir  Frederick 
Pollock,  a  barbarous  rule.  The  intent  or  the  oversight  of  the  legislature 
has  established  the  rule  in  this  case. 

The  language  of  the  statute  should  be  made  clear  so  that 
the  uncertainty  and  obscurity  suggested  by  Judge  Lowell 
would  be  removed.  So  important  a  statute  should  be  made 
so  certain  in  its  terms  that  the  intent  of  Congress  may  be 
made  manifest  and  clear. 

It  certainly  should  be  as  broad,  as  comprehensive,  and  as 
inclusive  in  its  terms  as  any  of  the  similar  remedial  statutes 
existing  in  any  of  the  States,  which  are  suspended  in  their 
operation  by  force  of  the  Federal  legislation  upon  the 
subject. 

Note. — The  remainder  of  this  report  is  incorporated  in  that  of  the 
Senate's  following. 


576 


FEDERAL   EMPLOYERS      LIABILITY    ACT. 


SENATE    REPORT   ON    AMEND- 
MENTS  OF    1910. 

AIMENDING  EMPLOYEES'  LIABILITY  ACT. 

March  22,   1910.— Ordered  to  be  printed. 

Mr.  Borah,  from  the  Committee  on  the  Judiciary,  submitted 

the  following 

REPORT. 
[To  accompany  H.  R.  17263.] 

The  Committee  on  the  Judiciary,  having  under  considera- 
tion House  bill  17263,  reports  as  follows: 

It  is  of  importance  at  the  outset  that  Congress  give  care- 
ful and  serious  consideration  to  remedying  any  defects  in 
the  practical  operation  of  the  Employers'  Liability  Lav/  from 
time  to  time  as  such  defects  are  developed  by  proceedings 
in  court.  This  serious  attention  seems  demanded  because 
the  good  faith  of  Congress  in  passing  the  original  act  has  been 
made  the  subject  of  attack  in  a  publication  which  has  been 
given  wide  circulation  among  railroad  counsel  of  the 
country.  At  page  83  of  this  publication  entitled,  "Uncon- 
stitutionality of  the  Federal  Employers'  Liability  Act,"  pub- 
lished by  the  Price,  Lee  &  Adkins  Company,  in  the  course 
of  an  argument  of  Mr.  Edward  D.  Robbins,  general  counsel 
of  the  New  York,  New  Haven  and  Hartford  Railroad  Com- 
pany, in  two  cases,  Mondou  v.  New  York,  New  Haven  and 
Hartford  Railroad  Company  ajid  Hoxie  v.  New  York,  New 
Haven  and  Hartford  Railroad  Company  (73  Atl.  Rep.,  754), 
appears  the  following : 

Does  any  member  of  this  court  believe  that  this  statute  would  ev-ir 
have  Ikjcu  passed  except  on  tlic  eve  of  a  presidential  elcctiDn  under 
the  influence  of  the  great  railway  unions  of  this  country?  If  this  act 
did  not  have  so  many  votes  behind  it,  ^vould  tlie  executive  department 
of  tlie  United  States  be  here,  participating  in  private  litigation,  for  tha 
purpose  of  defending  its  constitutionality? 

If  there  ever  was  a  case  in  which  the  courts  might  properly  be 
appealed  to,  to  set  up  the  fundamental  "law  of  the  land"  as  a  bulwarrc 
against  the  arbitrary  exercise  of  ymwer  by  a  Democratic  majority  and 
by  elected  Representatives  who  fear  that  majority,  I  think  this  is  that 


APPENDIX   B.  577 

We  may  remark  in  passing  that  this  gratuitous  statement 
could  have  no  proper  place  in  a  legal  discussion,  for  the 
Supreme  Court  of  the  United  States  said  in  the  McCray  case 
(196  U.  S.,  27)  — 

the  decisions  of  this  court  from  the  beginning  lend  no  support  whatever 
to  the  assumption  tliat  the  judiciary  may  restrain  the  exercise  of 
lawful  power  on  the  assumption  that  a  wrongful  piu'pose  or  motive  has 
caused  the  power  to  be  exerted. 

As  such  an  argument  could  receive  no  recognition  from 
any  court  as  a  basis  of  judicial  action,  as  has  been  pointed 
out  by  the  Supreme  Court  in  the  McCray  case,  it  is  strange 
that  it  should  find  its  place  in  the  presentation  of  a  serious 
matter  to  a  court.  This  subject  is  referred  to  here  only 
for  the  purpose  of  calling  upon  Congress  to  make  entirely 
manifest  the  good  faith  of  the  legislature  in  the  enactment 
of  the  Employers'  Liability  Law,  which  places  such  stringent 
liability  upon  the  railroads  for  injuries  to  their  employees 
as  to  compel  the  highest  safeguarding  of  the  lives  and  limbs 
of  the  men  in  this  dangerous  employment.  The  tremendous 
loss  of  life  and  limb  on  the  railroads  of  this  country  is 
appalling.  The  total  casualties  to  train  men  of  the  inter- 
state railroads  of  the  United  States  for  the  year  1908  was 
281,645. 

It  was  the  intention  of  Congress  in  the  enactment  of  this 
law  originally,  and  it  may  be  presumed  to  be  the  intention 
of  the  present  Congress  to  shift  the  burden  of  the  loss  re- 
sulting from  these  casualties  from  "those  least  able  to  bear 
it,"  and  place  it  upon  those  who  can,  as  the  Supreme  Court 
said  in  the  Taylor  case  (211  U.  S.,  281),  "measurably  con- 
trol their  causes." 

The  passage  of  the  original  act  and  the  perfection  thereof 
by  the  amendments  herein  proposed,  stand  forth  as  a  dec- 
laration of  public  policy  to  radically  change  as  far  as  con- 
gressional power  can  extend,  those  rules  of  the  common  law 
which  the  President  in  a  recent  speech  at  Chicago  char- 
acterized as  "unjust."  President  Taft  in  his  address  at 
Chicago,  September  16,  1909,  referred  "to  the  continuance 


578  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 

of  unjust  rules  of  law  exempting  employers  from  liability 
fcr  accidents  to  laborers," 

This  public  policj^  which  we  now  declare  is  based  upon 
the  failure  of  the  common -law  rules  as  to  liability  for  acci 
dent  to  meet  the  modern  industrial  conditions,  and  is  based 
not  alone  upon  the  failure  of  these  rules  in  the  United 
States,  but  their  failure  in  other  countries  as  well.  Mr. 
Asquith,  present  prime  minister  of  England,  said : 

It  was  revolting  to  sentiment  and  judgment  that  men  who  met  with 
accidents  through  the  necessary  exigencies  of  daily  occupation,  should 
be  a  charge  upon  their  own  families. 

The  passage  of  the  law  was  urged  upon  the  strongest  and 
highest  considerations  of  justice  and  promotion  of  the  pub- 
lic welfare.  It  was  largely  influenced  by  the  strong  mes- 
sage of  President  Roosevelt  to  the  Sixtieth  Congress  in 
December,  1907,  in  which  the  basis  of  the  legislation  was 
clearly  and  strongly  placed  upon  the  ground  of  justice  to 
the  railroad  workmen  of  this  country  and  in  which  legis- 
lation was  urged  to  the  limit  of  congressional  power  upon 
this  subject.     In  the  message  President  Roosevelt  said: 

The  practice  of  piitting  the  entire  burden  of  loss  to  life  or  limb  upon 
the  victim  or  the  victim's  family  is  a  form  of  social  injustice  in  whicu 
the  United  States  stands  in  unenWable  prominence.  In  both  our  federal 
and  our  state  legislation  we  have,  with  few  exceptions,  scarcely  gone 
farther  than  the  repetvl  of  the  fellow-servant  principle  of  the  old  law 
of  liability,  an  in  some  of  our  States  even  this  slight  modification  of  a 
completely  outgro\ATi  principle  has  not  yet  been  secured.  The  legislation 
of  the  rest  of  the  industrial  world  stands  out  in  striking  contrast  to 
our  backwardness  in  tliis  respect.  Since  1.S95  practically  every  country 
in  Europe,  together  with  Grent  Britain,  New  Zeland,  Australia,  British 
Columbia,  and  the  'Cape  of  G-ood  Hope  has  enacted  legislation  embodying 
in  one  form  or  another  the  complete  recogiiition  of  the  principle  which 
places  uj)on  the  employer  the  entire  trade  risk  in  the  various  lines  of 
industry. 

In  the  second  volume  of  Labatt  on  "Master  aud  Servant,'* 
at  page  1325,  the  learned  author,  after  an  able  discussion 
of  the  reasons  given  by  tlie  courts  of  the  doctrine  denying 
a  remedy  to  servants  injured  by  the  negligence  of  fellow-' 
servants,  says: 

It  would  appear,  therefore,  tliat  the  doctrine  of  common  employment 
stands  in  the  singular  j)redicanient  that  it  rests  very  largely,  if  not 
entirely,  u]Km  ii  Imsis  of  suggested  facts  wliich  we  are  asked  to  accept 
upon  the  mere  ipse  dixit  of  a  certain  numlwr  of  gentlemen  who  have 


APPENDIX  B.  579 

attained  greater  or  less  distinction  in  a  profession  which,  to  say  the 
very  least,  does  not  specially  qualify  them  to  form  a  reliable  opinion 
in  respect  to  the  subject-matter. 

This  situation,  which  would,  in  any  event,  be  extremely  unsatis- 
factory, is  reduced  to  something  like  an  absurdity  by  the  fact  that  the 
judicial  theory  as  to  the  supposed  inevitable  consequences  of  allowing 
servants  to  recover  for  the  negligence  of  their  coemployecs  lias  long 
since  been  exploded  by  the  logic  of  actual  occurrences,  the  signific;inco 
of  which  is  unmistakable.  In  England  and  her  colonies,  as  well  as  in 
America,  statutes  have  been  passed  which  have  greatly  restricted 
the  operation  of  the  doctrine  of  common  employment.  (See  Chapters 
XXXVII-XL,  post.)  No  one  would  have  the  hardihood  to  maintain,  in 
the  absence  of  any  specific  evidence  pointing  to  that  conclusion,  that, 
as  a  result  of  the  legislation,  servants  have  become  to  a  marked  degree 
less  careful  and  etiiciont,  or  that  industrial  development  has  been 
crippled  and  retarded  to  an  appreciable  extent.  The  practical  inference 
is  manifest.  If,  in  countries  where  the  doctrine  of  common  emplojinent 
has  been  more  or  less  circumscribed,  none  of  the  evil  results  which  it 
is  declared  to  have  obviated  can  be  detected,  it  may  be  safely  concluded 
that  no  harm  would  have  been  produced  if  the  doctrine  had  never  beea 
applied,  and  that  no  harm  will  result  if  it  should  be  entirely  abrogated 
by  the  legislatures,  the  only  authoa-ity  by  which  such  a  change  in  the 
law  can  now  be  effected. 

This  general  consideration  of  the  importance  of  the  sub- 
ject involved  in  the  legislation  and  the  justice  of  the  rule 
which  Congress  has  established  upon  this  subject  is  intro- 
ductory to  the  specific  questions  involved  in  the  pending 
measure.  These  questions  have  been  so  thoroughly  covered 
and  fully  treated  by  the  report  of  the  House  committee  that 
we  quote  and  adopt  quite  fully  the  discussion  on  that  sub- 
ject in  the  House  committee  report. 

The  proposed  amendments  to  the  employers'  liability  bill 
may  be  considered  under  three  heads :  First,  as  to  the  venue 
of  sucli  an  action ;  second,  as  to  the  concurrent  jurisdiction 
of  the  courts  of  the  several  States;  and,  third,  as  to  the 
survival  of  the  right  of  action. 

(1)  As  to  venue.  The  amendment  proposed  as  to  in- 
serting in  section  6  after  the  words  therein,  "that  no  such 
action  shall  be  maintained  under  this  act  unless  commenced 
within  two  years  from  the  day  cause  of  action  accrued," 
the  following: 

Under  this  act  an  action  may  be  brought  in  a  circuit  court  of  the 
United  States,  in  the  district  of  the  residence  of  either  plaintiff  or  the 
defendant,  or  in  which  the  cause  of  action  arose,  or  in  which  the 
defendant  shall  be  found  at  the  time  of  the  commencement  of  such 
action. 


580  FEDERAL   EMPLOYERS'    LLVBILITY    ACT. 

In  his  special  message  of  January  7,  1910,  President  Taft, 
after  referring  to  a  proposed  amendment  to  give  the  Inter- 
state Commerce  Commission  power  to  determine  the  uniform 
construction  of  sill  steps,  ladders,  hand  brakes,  etc.,  said : 

The  question  has  arisen  in  the  operation  of  the  interstate  commerce 
employers'  liability  act  as  to  wliether  suit  can  be  brought  against  the 
employer  company  in  any  place  other  than  that  of  its  home  office.  The 
right  to  bring  the  suit  under  this  act  should  be  as  easy  of  enforcement 
as  the  right  of  a  private  person  not  in  the  company's  employ  to  sue 
on  an  ordinary  claim,  and  process  in  such  suit  should  be  sufficiently 
seined  if  upon  the  station  agent  of  the  company  upon  wliom  service  is 
authorized  to  be  made  to  bind  the  company  in  ordinary  actions  arising 
under  state  laws.  Bills  for  both  the  foregoing  purposes  have  been 
considered  by  the  House  of  Representatives,  and  have  been  passed,  and 
are  now  before  the  Interstate  Commerce  Committee  of  the  Senate.  I 
earnestly  urge  that  they  be  enacted  into  law. 

[Note. — This  is  copied  verbatim  by  the  Senate  from  the  House  report 
until  the  Survival  of  Actions  is  discussed.] 


AMENDMENT  AS  TO  JURISDICTION— PLACE  WHERE  SUIT  MAY 
BE  BROUGHT. 

This  amendment  is  necessary  in  order  to  avoid  great  in- 
convenience to  suitors  and  to  make  it  unnecessary  for  an 
injured  plaintiff  to  proceed  only  in  the  jurisdiction  in  which 
the  defendant  corporation  is  an  ''inhabitant." 

This  is  held  by  the  courts  to  be  the  jurisdiction  in  which 
the  charter  of  the  defendant  corporation  was  issued.  This 
may  be  at  a  place  in  a  distant  State  from  the  home  of  the 
plaintiff,  and  may  be  a  thousand  miles  or  more  from  the 
place  where  the  injury  was  occasioned. 

The  extreme  difficulty,  if  not  impossibility,  of  a  poor  man 
who  is  injured  while  in  railroad  employ,  securing  the  attend- 
ance of  the  necessary  witnesses  at  such  a  distant  poini 
makes  the  remedy  given  by  the  law  of  little  avail  under  such 
circumstances. 

That  such  is  the  state  of  law  is  established  by  reference 
to  the  case  of  Cound  v.  Atchison,  Topeka  and  Santa  Fe 
Railway  Company,  decided  November  6,  1909,  in  the  United 


APPENDIX   B.  581 

States  Circuit  Court  for  the  El  Paso  division  of  the  western 
district  of  Texas  by  Judge  Maxey.  Judge  Maxey  in  the 
case  before  him  sustained  the  railroad's  plea  to  the  jurisdic- 
tion and  dismissed  a  suit  brought  in  Texas  under  the 
Employers'  Liability  Act  on  the  ground  that  there  was  di- 
versity of  citizenship  in  a  suit  based  on  a  law  of  the  United 
States. 

In  his  opinion  Judge  Maxey  says : 

Referring  to  the  statute  and  eliminating  the  federal  feature  of  the 
present  case,  the  jurisdiction  of  the  court  would  be  clear  beyond  contro- 
versy, since  in  that  case  the  jurisdiction  would  be  founded  only  on  the 
fact  of  diverse  citizenship.  But  here  there  appear  two  sources  of  juris- 
diction, the  one  founded  on  diverse  citizenship  and  the  other  upon  the 
fact  that  the  suit  arises  under  a  law  of  the  United  States.  In  the 
former  case  the  statute  authorizes  suit  to  be  brought  in  the  district  of 
the  residence  of  eitlier  the  plaintifl'  or  the  defendant,  where  the  juris- 
diction is  founded  only  on  the  fact  that  the  action  is  between  citizens 
of  different  States;  while  in  the  latter  suit  must  be  brought  in  the 
district  of  which  the  defendant  is  an  inhabitant. 

The  position  taken  by  Judge  Maxey  in  the  case  just  cited 
is  fortified  by  the  opinion  of  the  Supreme  Court  of  the  United 
States  in  the  case  of  Macon  Grocery  Co.  v.  Atlantic  Coast 
Line  Railroad  et  al.,  decided  within  a  few  weeks. 

It  seems  clear  from  these  decisions  that  a  suit  in  a  Federal 
court  under  this  law,  where  jurisdiction  is  founded  on  the 
fact  that  the  case  involves  a  Federal  statute,  must  be  brought 
in  the  district  of  which  the  defendant  is  an  inhabitant. 

No  argument  is  necessary  to  convince  that  this  is  a  grave 
injustice  to  the  plaintiff. 

Such  an  embarrassing  situation  ought  not  to  be  permitted 
to  exist  where  any  plaintiff  is  proceeding  in  a  Federal  court 
on  a  right  based  on  the  law  of  the  United  States. 

But  to  permit  it  to  be  a  practical  barrier  to  the  maintenance 
of  an  action  for  death  or  personal  injuries  of  employees  who 
may  be  presumed  to  be  unable  to  meet  the  expense  of  pre- 
senting their  case  in  a  jurisdiction  far  from  their  homes 
would  be  an  injustice  too  grave  and  serious  to  be  longer  per- 
mitted to  exist. 


582  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

CONCURRENT    JURISDICTION    OF    STATE    COURTS. 

It  is  proposed  to  further  amend  the  act  by  making  the 
jurisdiction  of  the  courts  of  the  United  States  "concurrent 
with  the  courts  of  the  several  States." 

This  is  proposed  in  order  that  there  shall  be  no  excuse  for 
courts  of  the  States  to  follow  in  the  error  of  the  Supreme 
Court  of  errors  of  Connecticut  in  the  case  of  Hoxie  v.  N.  Y. 
N.  H.  &  H.  R.  R.  Co.  (73  Atlantic  Rep.,  754),  in  which  case 
the  court  declined  jurisdiction  upon  the  ground,  mter  alia, 
that  Congress  did  not  intend  that  jurisdiction  of  cases  arising 
under  the  act  should  be  assumed  by  state  courts. 

It  is  clear  under  the  decisions  of  the  Supreme  Court  of  the 
United  States  that  this  conclusion  of  the  Connecticut  court 
is  erroneous.  And  the  reasons  recited  by  the  Connecticut 
court  lead  to  an  opposite  conclusion  from  that  which  the 
opinion  declares  upon  the  subject.  But  no  harm  can  come, 
and  much  injustice  and  wrong  to  suitors  may  be  prevented 
by  an  express  declaration  that  there  is  no  intent  on  the  part 
of  Congress  to  confine  remedial  actions  brought  under  the 
Employers'  Liability  Act  to  the  courts  of  the  United  States. 

In  declaring  that  the  jurisdiction  of  the  United  States 
courts  shall  be  "concurrent  mth  the  courts  of  the  several 
States,"  Congress  is  clearly  within  its  rights  and  powers. 

The  first  precedent  for  such  declaration  is  found  in  the 

action  of  the  First  Congress.     In  the  act  of  September  24, 

1789,  it  was  enacted  that  the  district  courts  of  the  United 

States  — 

shall  also  have  cognizance,  concurrent  with  the  courts  of  the  several 
States,  or  the  circuit  courts,  as  the  case  may  be,  of  all  causes  where 
an  alien  sues  for  a  tort  only  in  violation  of  the  law  of  nations  or  a 
treaty  of  the  United  States,  (r)  And  shall  also  have  cognizance,  con- 
current as  last  mentioned,  of  all  suits  at  common  law  where  the  United 
States  sue,  and  the  matter  in  disj)ute  amounts,  exclusive  of  costs,  to  the 
Bum  or  value  of  one  hundred  dollars  (U.  S.  Stat.  L.,  Vol.  I,  p.  77). 

This  precedent  lias  repeatedly  been  followed  in  Federal 
legislation.  Thus  early  was  it  established  by  those  who  under- 
stood tlic  full  scope  and  operation  of  the  Constitution  of  the 
United  States,  that  the  "supreme  law  of  the  land"  did  not 


APPENDIX   B.  583 

lose  any  of  its  imperative  obligation  at  the  door  of  a  state 
court. 

The  express  declaration  of  the  United  States  Constitution 
says  of  laws  enacted  by  Congress  in  pursuance  of  its  dele- 
gated powers,  "and  the  judges  in  every  State  shall  be  bound 
thereby,  anything  in  the  constitution  or  laws  of  any  State 
to  the  contrary  notwithstanding." 

This  declaration  of  the  Constitution  is  not  meaningless. 
That  the  "judges  in  every  State  shall  be  bound"  by  a  Fed- 
eral law  imposes  a  binding  duty  to  enforce  it. 

This  provision  leaves  no  discretion  to  a  judge  of  a  state 
court  to  deny  justice  to  a  suitor  because  his  right  is  based  on 
a  Federal  law. 

The  Connecticut  court  says  that  this  Federal  statute  known 
as  the  Employers'  Liability  Act,  "would  also  compel  courts 
established  by  a  sovereign  power,  and  maintained  at  its  ex- 
pense for  the  enforcement  of  what  is  deemed  justice,  to  en- 
force what  it  deemed  injustice,"  We  may  disregard  for  the 
moment  the  suggestion  of  the  injustice  of  a  particular  statute. 
The  local  opinion  of  the  justice  of  a  particular  law  is  no  ob- 
stacle to  its  enforcement  if  it  be  a  binding  law.  We  will 
therefore  consider  the  proposition  solely  as  if  the  factor  of 
local  opinion  as  to  its  justice  was  eliminated  from  controversy. 
A  court  may  err  in  its  estimate  of  what  its  state  really  did 
* '  consider  injustice. ' ' 

Does  the  fact  that  state  courts  are  "established  by  a  sov- 
ereign power  and  maintained  at  its  expense"  permit  denial 
of  enforcement  in  such  courts  of  a  right  founded  on  a  Federal 
statute  ? 

This  question  is  squarely  answered  in  a  case  which, 
strangely  enough,  is  cited  by  the  court  in  the  Hoxie  case. 
( Claflin  V.  Houseman,  93  U.  S.,  130, )  In  this  case  Mr,  Justice 
Bradley  says: 

The  fact  that  a  state  court  derives  its  existence  and  functions  from 
the  state  laws  is  no  reason  why  it  should  not  afford  relief,  because  it 
is  subject  also  to  the  laws  of  the  United  States,  and  is  just  as  much 
bound  to  recognize  these  as  operative  within  the  State  as  it  is  to 
recognize  the  state  laws. 


584  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 


Chancellor  Kent,  in  his  Commentaries  (1  Com.,  400),  says: 

In  judicial  matters  the  concurrent  jurisdiction  of  the  state  tribunals 
depends  altogether  upon  the  pleasure  of  Congress,  and  may  be  revoked 
and  extinguished  whenever  they  thinlc  proper,  iu  every  case  in  which 
the  subject-matter  can  constitutionally  be  made  cognizable  in  the  federal 
courts;  and  that,  without  an  express  provision  to  the  contrary,  the 
state  courts  will  retain  a  concurrent  jvirisdiction  in  all  cases  where  they 
had  jurisdiction  originally  over  the  subject-matter. 

To  quote  from  Cooley's  Principles  of  Constitutional  Law, 

pages  32-33 : 

A  state  law  must  yield  to  the  supreme  law,  whether  expressed  in  the 
Constitution  of  the  United  States  or  in  any  of  its  laws  or  treaties,  so 
far  as  they  come  in  collision,  and  whether  it  be  a  law  in  existence 
when  the  "supreme  law'"  was  adopted  or  enacted  afterwards.  The  same 
is  true  of  any  provision  in  the  constitution  of  any  State  which  is 
found  to  be  repugnant  to  the  Constitution  of  the  Union.  And  not  only 
must  '"the  judges  in  every  State"  be  bound  by  such  supreme  law,  but  so 
must  the  State  itself,  and  every  official  in  all  its  departments,  and  every 
citizen.  n 

And  in  the  notes,  pages  33-35,  we  read : 

The  United  States  is  a  government  with  authority  extending  over  the 
whole  territory  of  the  Union,  acting  upon  the  States  and  the  people 
of  the  States.  While  it  is  limited  in  the  number  of  its  powers,  so  far 
as  its  sovereignty  extends  it  is  supreme.  No  state  government  cau 
exclude  it  from  the  exercise  of  any  authority  conferred  upon  it  by  the 
Constitution,  obstruct  its  authorized  officers  against  its  will,  or  witlihold 
from  it  for  a  moment  the  cognizance  of  any  subject  which  that  instru- 
ment has  committed  to  it  (Tennessee  v.  Davis,  100  U.  S.,  257,  per 
(Strong,  J.;  see  also  In  re  Debs,  petitioner,  158  U.  S.,  534;  Logan  v. 
United  States,  144  U.  S.,  263;  *  *  *  Dodge  v.  Wolsey,  18  How., 
331 ;  Jefferson  Branch  Bank  v.  Skelly,  1  Black.,  436 ;  Cummings  v. 
Missouri,  4  \\'all.,  277;  Railroad  Co.  v.  McClure,  10  Wall.,  oil;  White 
V.  Hart,  13  Wall.,  640;  Guim  v.  Barry,  15  Wall.,  610;  Pacific  Railroad 
Co.  V.  ;^iagui^e,  20  Wall.,  36;  St.  Louis,  &c.,  Ry.  Co.  v.  Vickers,  122 
U.  S.,  360.)  A  state  can  not  control  the  conduct  of  an  agency  of  the 
Federal  Government  within  its  limits,  if  the  result  would  be  a  conflict 
with  nationa/1  law  or  an  impairment  of  the  efficiency  of  the  agency. 
(Davis  V.  Elmira  Savings  Bank,  161  U.  S..  275;  ^McClellan  v.  Chipman, 
164  U.  S.,  '347.  Compare  Reagan  v.  Mercantile  Trust  Co.,  154  U.  S., 
413.) 

Whenever  the  terms  in  whifli  a  power  is  granted  to  Congress,  or  the 
nature  of  the  power,  require  that  it  should  be  exercised  exclusively  by 
Congress,  the  subject  is  as  completely  taken  from,  the  state  legislature 
as  if  they  had  been  expressly  forbidden  to  act.  (Marshall,  C.  J.,  in 
Sturges  V.  Crowninshiold,  4  Wheat.,  122.) 

In  Robb  V.  Connolly  (111  U.  S.,  637),  Justice  Harlan  said: 

Upon  the  state  cxjurts,  equally  with  the  courts  of  the  Union,  rests 
the  (rbligution  to  guard,  enforce,  and  protect  every  right  granted  '>r 
secured  by  the  Constitution  of  the  United  States  and  the  laws  made  in 


APPENDIX   B.  585 

pursuance  thereof.  Wherever  those  rights  are  involved  in  any  suit  or 
proceeding  before  them;  for  the  judges  of  the  state  courts  are  required 
to  take  an  oatli  to  supjx)rt  that  Constitution,  and  they  are  bound  by  it. 
and  the  laws  of  the  United  States  made  in  i)ursuance  thereof,  and  all 
treaties;  made  under  their  authority,  as  the  supreme  law  of  the  land, 
•'anytliing  in  the  constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding."  If  they  fail  therein,  and  withhold  or  deny  rights  or 
immunities  secured  by  the  Constitution  and  laws  of  the  United  States, 
the  party  aggrieved  may  bring  the  case  from  the  highest  court  of  the 
State  in  which  the  question  could  be  decided  to  tliis  court  for  final  and 
conclusive  determination. 

In  re  Matthews  (122  Fed.  Rep.,  248,  p.  251)  : 

The  second  clause  of  article  6  of  the  Federal  Constitution  is  in  these 
words : 

"This  Constitution  and  the  laws  of  the  United  States,  which  shall 
be  made  in  pursuance  thereof,  and  all  treaties  made  or  which  shall 
l)e  made  under  the  authority  of  the  United  States,  shall  be  the  supreme 
law  of  the  land;  and  the  judges  in  every  State  shall  be  bovmd  thereby, 
anything  in  the  constitution  or  laws  of  any  State  to  the  contrary 
notwithstanding." 

A  recent  writer  in  the  American  Law  Review^  has  had  tliis 

to  say  concerning  this  clause,  to-wit : 

"This  provision  presupposes  that  the  judges  in  every  State  will  have 
some  knowledge  of  the  Constitution,  the  laws,  and  the  treaties  of  the 
Federal  Government  by  which  they  are  thus  to  be  bound;  and  this 
community  of  interest  and  obligation  obviously  makes  the  judicial 
officers  of  the  several  States,  in  a  certain  high  sense,  members  of  tlie 
federal  judiciary." 

In  the  case  of  Rohh  v.  Connolly   (111  U.  S.,  637;  4  Sup. 

Ct.,  551;  28  L.  Ed.,  542),  Mr.  Justice  Harlan  said: 

"A  state  court  of  original  jurisdiction,  having  the  parties  before  it, 
may,  consistently  with  existing  federal  legislation,  determine  cases  at 
law  or  in  equity  arising  under  the  Constitution  and  laws  of  the 
United  States,  or  involving  rights  dependent  ujxin  such  Constitution  or 
laws." 

And  again : 

"Upon  the  state  courts,  equally  with  the  courts  of  the  Union,  rests 
the  obligation  to  guard,  enforce,  and  protect  every  right  granted  or 
secured  by  the  Constitution  of  the  United  States,  and  the  laws  made 
in  pursuance  thereof,  whenever  these  rights  are  involved  in  any  suit  or 
proceeding  before  them." 

In  the  case  of  Ex  parte  Royall,  supra,  J\Ir.  Justice  Harlan 

said: 

In  Taylor  v.  Carryl  (20  How.,  595;  15  L.  Ed.,  1038)  It  was  said 
to  be  a  recognized  portion  of  the  duty  of  this  court  (and,  we  will  add, 
of  all  other  courts,  national  and  state)  "to  give  preference  to  sucn 
principles   and   methods  or   procedure   as   shall    seem   to   conciliate  the 


586  FEDERAL    EMPLOYERS'    LIABILITY    ACT. 

distinct  and  independent  tribunals  of  the  States  and  of  the  Union,  so 
that  they  may  co-operate  as  liarmonious  members  of  a  judicial  system, 
coextensive  with  the  United  States,  and  submitting  to  the  paramount 
authority  of  tlie  same  Constitution,  laws^  and  federal  obligations." 
And  in  Covell  v.  Heyman  (111  U.  S.,  182;  4  Sup.  Ct.,  358;  28  L.  Ed., 
390)  it  was  declared  "that  the  forbearance  which  courts  of  co-ordinate 
jurisdiction,  administered  under  a  single  system,  exercise  toward  each 
other,  whereby  conflicts  are  avoided  by  avoiding  interference  with  the 
process  of  the  other,  is  a  principle  of  comity,  with  perhaps  no  higher 
sanction  than  the  ability  of  which  comes  from  concord ;  but  betweea 
state  courts  and  those  of  the  United  States  it  is  something  more.  It 
is  a  principle  of  right  and  of  law,  and  therefore  of  necessity." 

Pomeroy,  "Introduction  to  the  Constitutional  Law  of  the 
United  States,"  third  edition,  503,  Section  743: 

Strip  the  National  Government  of  an  authority  to  apply  a  sanction 
commensurate  with  its  power  to  legislate,  and  just  so  far  we  subtract 
from  that  legislation  the  necessary  element  of  a  command.  Strip  the 
Government  of  the  ability  to  make  that  sanction  supreme,  and  we 
equally  invalidate  the  authority  of  the  legislative  utterance.  This 
attribute  of  supremacy  would  be  destroyed  by  permitting  the  state 
courts,  for  example,  to  decide  upon  the  effect  of  national  laws,  and 
by  making  their  decisions  in  the  ]iarticular  State  where  made  of  aa 
equal  authority  with  those  pronounced  upon  the  same  subject  by  the 
national  judges.  This  difficulty  thus  to  be  apprehended  from  the  action 
of  state  tribunals  could  only  be  prevented  in  one  of  two  ways — either 
by  removing  from  them  the  power  to  decide  at  all  upon  rights  and 
duties  which  spring  from  the  national  legislation  and  conferring  the 
function  exclusively  upon  the  United  States  courts,  or  by  permitting 
the  state  judiciary  to  exercise  a  jurisdiction  in  such  cases,  but  making 
that  jurisdiction  subordinate  to  the  autliority  of  tlie  national  courts 
and  rendering  the  local  decisions  reviewable  by  the  United  States 
judges,  who  could  in  this  manner  enforce  their  attribute  of  supremacy 
in  relation  to  the  matters  under  consideration. 

In  theory  the  former  of  these  plans  woiild  have  been  the  more  simple 
and  perfect.  But  it  was  perhaps  best,  from  some  motives  of  axpediency, 
that  the  Constitution  should  not  expressly  determine  between  these  two 
methods,  but  should  clothe  Congress  with  the  power  of  making  such  a 
choice  of  tlio  alternatives  as  should  be  found  to  promote  the  convenience 
of  the  peoj)]e.  Congress  possesses  such  an  authority;  it  might  make  all 
this  jurisdiction  exclusive  in  the  national  courts,  but  has  done  so  only 
in  particular  cases;  it  might  suffer  the  state  tribunals  to  exercise  a 
complete  (concurrent  power,  subject  to  an  equally  complete  liability  to 
review,  but  has  done  so  only  to  a  limited  extent.  Wliether  Congress 
shall  adopt  one  or  the  otlier  alternative  is  a  mere  question  of  ])olicy;  it 
may  do  either.     *     ♦     * 

The  Supreme  Court  of  the  United  States,  in  Teal  v.  Fulton 
(53  U.  S.,  292),  referrint?  to  this  subject,  said: 

Wo  will  add  tliat  the  legislation  of  Congress  immediately  after  the 
(Jonstitiition  was  carried  into  operation  confirms  the  conclusion  of  the 
learncrd  judge.     We  find  in  tlie  t\v<'nty-fifth  section  of  the  judiciary  act 


APPENDIX   B.  587 

of  1789,  under  which  this  case  is  before  us,  that  such  a  concurrent 
jurisdiction  in  the  courts  of  the  States  and  the  United  States  was 
contemplated,  for  its  first  provision  is  for  a  review  of  cases  adjudicated 
in  the  forum,  "where  is  drawn  in  question  tlie  validity  of  a  treaty  or  a 
statute  of,  or  an  autlioi-ity  exercised  by,  tlie  United  States,  and  the 
decision  is  against  their  validity." 

The  Supreme  Court  of  the  United  States  decided  in  this 
case  of  Teal  v.  Fulton,  that  a  state  court  had  jurisdiction  to 
try  an  action  brought  against  a  postmaster  who  refused  to 
deliver  a  newspaper  on  which  there  was  ''an  initial"  unless 
the  addressee  would  pay  letter  postage,  the  action  being 
founded  on  the  thirteenth  and  thirtieth  sections  of  the  act  of 
Congress  passed  in  1825  forbidding  a  writing  or  memorandum 
on  a  newspaper  or  other  printed  matter,  pamphlet,  or  maga- 
zine transmitted  by  mail.  The  court  said,  Mr,  Justice  Wayne 
delivering  the  opinion: 

But  it  is  said  that  the  courts  of  New  York  had  not  jurisdiction  to 
try  the  case.  The  objection  may  be  better  answered  by  reference  to  the 
laws  of  the  United  States  in  respect  to  the  services  to  be  rendered  in 
the  transmission  of  letters  and  newspapers  by  mail  and  by  tlie  (Con- 
stitution of  the  United  States  than  it  can  by  any  general  reasoning 
upon  the  concurrent  civil  jurisdiction  of  the  courts  of  the  United  States 
and  the  courts  of  the  States,  or  concerning  the  exclusive  jurisdiction 
given  by  the  Constitution  to  the  former. 

The  United  States  undertakes,  at  fixed  rates  of  postage,  to  convey 
letters  and  newspapers  for  those  to  whom  they  are  directed,  and  the 
postage  may  be  prepaid  by  the  sender  or  be  paid  when  either  reach 
their  destination  by  the  person  to  whom  they  are  addressed.  When 
tendered  by  the  latter  or  by  his  agent  he  has  the  right  to  the  immediate 
possession  of  them,  though  he  has  not  had  before  the  actual  possession. 
If  they  be  wrongfully  withheld  for  the  oliarge  of  unlawful  postage, 
it  is  a  conversion  for  which  suit  may  be  brought.  His  right  to  sue 
existing,  he  may  sue  in  any  court  having  civil  jurisdiction  of  such  a 
case,  unless  for  some  cause  the  suit  brought  is  an  exception  to  the 
general  jurisdiction  of  the  court. 

Now,  the  courts  of  New  York  having  jurisdiction  in  trover,  the  case 
in  hand  can  only  be  excepted  from  it  by  such  a  case  as  this  having 
been  made  one  of  exclusive  jurisdiction  in  the  courts  of  the  United 
States  by  the  Constitution  of  the  United  States.  That  such  is  not  the 
case,  we  can  not  express  our  view  better  than  Mr.  Justice  Wright  has 
done  in  his  opinion  in  this  case  in  the  court  of  appeals.  After  citing 
the  second  section  of  the  third  article  of  the  Constitution,  he  adds, 
"This  is  a  mere  grant  of  jurisdiction  to  the  federal  courts,  and  limits 
the  extent  of  their  power,  but  without  words  of  exclusion  or  any 
attempt  to  oust  the  state  courts  of  concurrent  jurisdiction  in  any  of 
the  specified  cases  in  which  concurrent  jurisdiction  existed  prior  to  the 
adoption  of  the  Constitution.  The  apparent  object  was  not  to  curtail 
the  powers  of  the  state  courts,  but  to  define  the  limits  of  those  granted 
to  the  federal   judiciary." 


588  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 

We  will  add  that  the  legislation  of  Congress,  immediately  after  the 
Constitution  was  carried  into  operation,  oonhrms  the  conclusion  of  the 
learned  judge.  We  find  in  tlie  twenty-fifth  section  of  the  judiciary  act 
of  1789,  under  which  this  case  is  before  us,  that  such  a  concurrent 
jurisdiction  in  the  courts  of  the  States  and  of  the  United  States  was 
contemplated,  for  its  first  provision  is  for  a  review  of  cases  adjudicated 
in  the  former,  "'Where  is  drawn  in  question  the  validity  of  a  treaty 
or  statute  of,  or  an  authority  exercised  under  the  United  States,  and 
the  decision  is  against  their  validity."  We  are  satisfied  that  there  was 
no  error  in  the  decision  of  the  court  of  appeals  in  tnis  case,  and  the 
same  is  affirmed  by  this  court. 

In  the  case  of  The  Moses  Taylor  (1866,  4  Wall.,  U.  S.,  428) 
the  court  said: 

*  »  *  'pjjg  judiciarj'  act  of  1789,  in  its  distribution  of  jurisdic- 
tion to  the  several  feueral  courts,  recognizes  and  is  framed  U2Jon  the 
theory  that  in  all  cased  to  wiiich  tlie  judicial  power  of  the  United 
States  extends  Congress  may  rightfully  vest  exclusive  jurisdiction  in 
the  federal  courts.  It  declares  that  in  some  cases,  from  their  com- 
mencement, such  jurisdiction  sliall  be  exclusive;  in  other  cases  it  deter- 
mines at  what  stage  of  procedure  such  jurisdiction  shall  attach,  and 
how  long  and  how  far  concurrent  jurisdiction  of  the  state  courts  shall 
be  permitted.  Thus,  cases  in  which  the  United  States  are  parties, 
civil  causes  of  admiralty  and  maritime  jurisdiction,  and  cases  against 
consuls  and  vice-consuls,  except  for  certain  ofi'enses,  are  placed,  from 
their  commencement,  exclusively  under  the  cognizance  of  the  federal 
courts. 

On  the  other  hand,  some  cases,  in  which  an  alien  or  a  citizen  of 
another  State  is  made  a  party,  may  be  brought  either  in  a  federal  or  a 
state  court,  at  the  option  of  the  plaintiff;  and  if  brought  in  the  state 
court  may  be  prosecuted  until  the  appearance  of  the  defendant,  and 
then,  at  his  option,  may  be  suffered  to  remain  there,  or  may  be  trans- 
ferred to  the  jurisdiction  of  the  federal  courts.  Other  cases,  not 
included  under  these  heads,  but  involving  questions  under  the  Con- 
stitution, laws,  treaties,  or  authority  of  the  United  States,  are  only 
drawn  within  the  control  of  the  federal  courts  upon  appeal  or  writ  of 
error,  after  final  judgment.  By  subsequent  legislation  of  Congress,  and 
particularly  by  the  legislation  of  the  last  four  years,  many  of  the  oases, 
which  by  the  judiciary  act  could  only  come  under  the  cognizance  of  the 
federal  courts  after  final  judgment  in  the  state  courts,  may  be  with- 
drawn from  tlie  concurrent  jurisdiction  of  the  latter  courts  at  earlier 
stages,  upon  the  application  of  the  defendant.  The  constitutionality 
of  these  provisions  can  not  be  seriously  (juestioned,  and  is  of  frequent 
recognition  by  both  state  and  federal  courts. 

It  is  difficult  to  understand  why  the  Connecticut  court  cites 
the  case  of  Claflin  v.  Houseman  (93  U.  S.,  130)  as  authority 
for  the  remarkable  position  taken,  for  a  careful  consideration 
of  the  opinion  of  Mr.  Justice  Bradley  in  that  case  shows 
conclusively  that  the  opinion  affords  no  basis  for  the  con- 
tention made  by  the  court  that  the  state  court  is  not  author- 


APPENDIX  B. 


589 


ized  and  required  to  enforce  Federal  statutes.    In  his  opinion, 
Mr.  Justice  Bradley  said: 

The  general  question,  whether  state  courts  can  exercise  concurrent 
jurisdiction  witli  the  federal  courts  in  cases  arising  under  the  Con 
fetitutioii.  laws,  and  treaties  of  the  United  States  has  been  elaborately 
discussed,  both  on  the  bench  and  ''i  published  treatises;  sometimes  with 
a  leaning  in  one  direction  and  sometimes  in  the  other;  but  the  result 
of  these  discussions  lias,  in  our  judgment,  been,  as  seen  in  the  above 
cases,  to  affirm  the  jurisdiction  where  it  is  not  excluded  by  express 
provision  or  by  incompatibility  in  its  exercise  arising  from  the  nature 
of  the  particular  case. 

When  we  consider  the  structure  and  true  relations  of  the  federal  and 
state  governments,  there  is  really  no  just  foundation  for  excluding  the 
state  courts  from  all  such  jurisdiction. 

The  laws  of  the  United  States  are  laws  of  the  several  (States,  and 
just  as  much  binding  on  the  citizens  and  courts  thereof  as  state 
laws  are. 

The  United  States  is  not  a  foreign  sovereignty  as  regards  the  several 
States,  but  is  a  concurrent  and,  within  its  jurisdiction,  paramount 
sovereignty.  Every  citizen  of  a  State  is  a  subject  of  two  distinct 
sovereignties,  having  concurrent  jurisdiction  in  the  .State:  concurrent 
as  to  place  and  persons,  though  distinct  as  to  subject-matter.  Legal 
or  equitable  rights,  acquired  under  either  system  of  laws,  may  be 
enforced  in  any  court  of  either  sovereignty  com'petent  to  hear  and 
determine  such  kind  of  rights  and  not  restrained  by  its  constitutioa 
in  the  exercise  of  such  jurisdiction.  Thus  a  legal  or  equittible  right 
acquired  under  state  laws  may  be  prosecuted  in  the  state  courts,  and 
also,  if  the  parties  reside  in  diflerent  States,  in  the  federal  courts. 

So  rights,  whether  legal  or  equitable,  acquired  under  the  laws  of 
the  United  States  may  be  prosecuted  in  the  United  States  courts  or 
in  the  state  courts  competent  to  decide  rights  of  the  like  charact-er 
and  class,  subject,  however,  to  this  qualification,  tliat  where  a  right 
arises  under  a  law  of  the  United  States,  Congi'ess  may,  if  it  see  fit, 
give  to  the  federal  courts  exclusive  jurisdiction. 

See  remarks  of  IMx.  Justice  Field  in  The  Moses  Tavlor  (4  Wall.,  42'J; 
71  U.  S.,  XVIII,  401),  and  Story,  J.,  in  Martin  v.  Hunter  (1  Wheat., 
334),  and  Mr.  Justice  Swavne  in  Ex  imrte  McNeil  (13  Wall.,  236; 
80  U.  S.,  XX,  624). 

This  jurisdiction  is  sometimes  exclusive  by  express  enactment  and 
sometimes  by  implication. 

If  an  act  of  Congress  gives  a  penalty  to  a  party  aggrieved,  without 
specifying  a  remedy  for  its  enforcement,  there  is  no  reason  why  it 
should  not  be  enforced,  if  not  provided  otherwise  by  some  act  of 
Congress,  by  a  proper  action  in  a  state  court. 

The  fact  that  a  state  court  derives  its  existence  and  functions  from 
the  state  laws  is  no  reason  why  it  should  not  afford  relief,  because  it  is 
subject  also  to  the  laws  of  the  United  States,  and  is  just  as  much 
bound  to  recognize  these  as  operative  within  the  State  as  it  is  to 
recognize  the  state  laws.  The  two  together  form  one  system  of  juris- 
prudence which  constitutes  the  law  of  the  land  for  the  State;  and  the 
courts  of  the  two  jurisdictions  are  not  foreign  to  each  other,  nor  to  be 
treated  by  each  other  as  such,  but  as  courts  of  the  same  country, 
having  jurisdiction  partly  different  and  partly  concurrent. 


590  ii^EDERAL  employers'  li.vbility  act. 

The  disposition  to  regard  the  laws  of  the  United  States  as  emanating 
from  a  foreign  jurisdiction  is  founded  on  erroneous  views  of  the 
nature  and  relations  of  the  state  and  federal   govemmenta. 

It  is  often  the  cause  or  the  consequence  of  an  unjustitiable  jealousy  of 
the  United  States  Government  which  has  been  the  occasion  of  disastrous 
evils  to  the  country. 

It  is  true  the  sovereignties  are  distinct,  and  neither  can  interfere 
with  the  proper  jurisdiction  of  the  other,  as  was  so  clearly  shoA\-n  by 
Chief  Justice  'laney  in  the  case  of  Ableman  v.  Booth  (21  How.,  506: 
62  U.  S.,  XVI,  169),  and  hence  state  courts  have  no  power  to  revise 
the  action  of  the  federal  courts,  nor  the  federal  the  state,  except  where 
the  Federal  Constitution  or  laws  are  in^iolved.  But  this  is  no  reason 
why  state  courts  should  not  be  open  for  the  prosecution  of  rights 
growing  out  of  the  laws  of  the  United  'States,  to  w^hich  their  jurisdiction 
is  competent  and  not  denied.     *     «     * 

In  Ex  parte  Siebold  (100  U.  S.)  the  court  said: 

The  power  of  Congress,  as  we  have  seen,  is  paramount,  and  may  be 
exercised  at  any  time  and  to  any  extent  which  it  deems  expedient;  and 
so  far  as  it  is  exercised  and  no  further  the  regulations  effected  supersede 
those  of  the  State  which  are  inconsistent  therewith. 

As  a  general  rule,  it  is  no  doubt  expedient  and  wise  that  the  opera- 
tions of  the  state  and  national  governments  should,  as  far  as  prac- 
ticable, be  conducted  separately,  in  order  to  avoid  undue  jealousies  and 
jars  and  confiiets  of  jurisdiction  and  power.  But  thei-e  is  no  reason 
for  laying  this  down  as  a  rule  of  universal  application.  It  should  never 
be  made  to  override  the  plain  and  manifest  dictates  of  the  Constitution 
itself. 

We  can  not  yield  to  such  a  transcendental  view  of  state  sovereignty. 
The  Constitution  and  laws  of  the  United  States  are  the  supreme  law 
of  the  land,  and  to  these  every  citizen  of  every  State  owes  obedience, 
whether  in  his  indiviuual  or  official  capacity. 

There  are  very  few  subjects,  it  is  true,  in  which  our  system  of 
government,  complicated  as  it  is,  requires  or  gives  room  for  conjoint 
action  between  the  state  and  national  sovereignties.  Generally,  the 
powers  given  by  the  Constitution  to  the  Government  of  the  United 
States  are  given  over  distinct  branches  of  sovereignty  from  which  the 
state  governments,  either  expressly  or  by  necessary  implication,  are 
excluded. 

But  in  this  case  expressly,  and  in  some  others  by  implication,  as  we 
Ihave  seen  in  the  case  of  pilotage,  a  concurrent  jurisdiction  is  contem- 
plated, that  of  the  State,  however,  being  subordinate  to  that  of  the 
United  States,  whereby  all  question  of  precedency  is  eliminated. 

The  position  assumed  by  the  court  on  this  question  is  with- 
out precedent  and  is  entirely  untenable  in  the  light  of  the 
judicial  history  of  the  United  States.  If  a  Federal  right  can 
not  bo  tbe  basis  of  a  plaintiff's  claim  in  a  state  court;  if  those 
courts  derive  their  power  and  authority  and  compensation 
from  tbe  States  for  tbe  purpose  of  deciding  only  controver- 
sies arising  under  the  law  of  tbe  State,  written  and  unwritten, 


APPENDIX   B.  591 

then  a  defense  based  upon  a  Federal  right  would  be  equally- 
unenforceable  in  said  courts.  If  they  refuse  to  try  Federal 
questions  for  a  plaintiff,  because  they  are  without  jurisdic- 
tion, how  can  they  consent  to  try  a  Federal  question  when 
asserted  as  a  ground  of  defense  by  the  party  proceeded 
against  ? 

In  a  comparatively  recent  ease  the  Supreme  Court  of  the 
United  States,  in  the  case  of  the  Defiance  Water  Co.  v.  De- 
fiance (191  U.  S.,  194),  Chief  Justice  Fuller,  in  delivering  the 
opinion  of  the  court,  used  the  following  language : 

Moreover,  the  state  courts  are  perfectly  competent  to  decide  federal 
questions  arising  before  them  and  it  is  their  duty  to  do  so.  (Robb 
V.  Connolly,  111  U.  S.,  G24,  637,  28  L.  Ed.,  542,  546,  4  Sup.  Ct.  Rep. 
544;  Missouri  P.  R.  Co.  v.  P'itzgerald,  100  U.  S.,  556,  583,  40  L.  Ed.,  33G, 
543,  16  Sup.  Ct.  Rep.,  389. 

And  we  repeat,  the  presumption  is  in  all  cases  that  the  state  courts 
will  do  wliat  the  Constitution  and  laws  of  the  United  States  require. 
(Chicago  &  A.  R.  Co.  v.  Wiggins  Ferry  Co.,  108  U.  S.,  18,  27  L.  ed., 
636,  1  Sup.  Ct.  Rep.,  614.  617;  Shreveport  v.  Cole,  129  U.  S.,  36,  32 
L  Ed.,  589,  9  Sup.  Ct.  Rep.,  210;  Neal  v.  Delaware,  103  U.  S.,  370,  381), 
26  L.  Ed.,  567,  571;  New  Orleans  v.  Benjamin,  153  U.  S.,  411,  424, 
38  L.  Ed.,  764,  769,  14  Sup.  Ot.  Rep.,  905.) 

If  error  supervenes  the  remedy  is  found  in  paragraph  709  of  the 
Revised  Statutes.     (U.  S.  Oomp.  Stat.,  1901,  p.  575.) 

In  Claflin  v.  Houseman,  ante,  the  court  said: 

The  United  States  is  not  a  foreign  sovereignty  as  regards  the  several 
States,  but  is  a  concurrent  and,  within  its  jurisdiction,  paramoimt 
sovereignty.     *     *     * 

The  disjiosition  to  regard  the  laws  of  the  United  States  as  emanating 
from  a  foreign  jurisdiction  is  founded  on  erroneous  views  of  the 
nature  and  relations  of  the  state  and  federal  governments. 

It  is  often  the  cause  or  the  consequence  of  an  unjustifiable  jealousy 
of  the  United  States  Government,  which  has  been  the  occasion  of  dis- 
astrous evils  to  the  country. 

Mr.   Justice  Shiras,  in  commenting  upon  the  concurrent 

jurisdictional  power  of  the  state  and  federal  courts,  in  the 

case  of  Murray  v.  Chicago  and  N.  W.  Ry.  Co.  (62  Fed.  Rep., 

24) ,  said : 

A  further  point  is  made  in  support  of  the  demurrer,  to  the  effect 
that  this  court  succeeds  only  to  the  jurisdiction  of  the  state  court  in 
which  the  action  was  originally  brought,  and  that  state  courts  have 
no  jurisdiction  over  cases  arising  out  of  interstate  commerce,  the  argu- 
ment being  that,  as  the  State  can  not  legislate  touching  interstate 
commerce,  the  state  courts  are  without  power  to  determine  cases  of  the 
like  character.     This  position  is  not  well  taken.     Tlie  limitations  upon 


592  FEDERAJj   employers'    LIABILITY    ACT. 

the  legislative  power  of  the  nation  and  of  the  several  States  do  not 
necessarily  apply  to  the  judicial  branches  of  the  national  and  state 
governments.  The  legislature  of  a  State  can  not  abrogate  or  modify 
any  of  the  provisions  of  the  Federal  Constitution  nor  of  the  acts  of 
Congress  touching  matters  within  congressional  control,  but  the  courts 
of  the  State,  in  the  absence  of  a  prohibitory  provision  in  the  Federal 
Constitution  or  acts  of  Congress,  have  full  jurisdiction  over  cases 
arising  under  the  Constitution  and  laws  of  the  United  States. 

The  courts  of  the  States  are  constantly  called  upon  to  hear  ajid 
decide  cases  arising  under  the  Federal  Constitution  and  laws,  just 
as  the  courts  of  the  United  States  are  called  upon  to  hear  and  decide 
cases  arising  under  the  law  of  the  State  when  the  adverse  parties  are 
citizens  of  different  States.  The  duty  of  the  court  is  to  explain,  apply, 
and  enforce  the  existing  law  in  the  particular  cases  brought  before  them. 
If  the  law  applicable  to  a  given  case  is  of  federal  origin,  the  legislature 
of  the  State  can  not  abrogate  or  change  it,  but  the  courts  of  the  State 
may  apply  and  enforce  it;  and  hence  the  fact  that  a  given  subject,  like 
interstate  commerce,  is  beyond  legislative  control  does  not,  ipso  facto, 
prevent  the  courts  of  the  State  from  exercising  jurisdiction  over  cases 
which  grow  out  of  this  commerce.  Had  this  action  remained  in  the 
state  court  in  which  it  was  originally  brought,  the  court  would  havo 
had  jurisdiction  to  hear  and  determine  the  issues  between  the  parties, 
because  Congress  had  not  enacted  that  jurisdiction  over  cases  of  this 
character  is  confined  exclusively  to  the  courts  of  the  United  States. 
and  therefore  the  jurisdiction  of  the  state  court  was  full  and  complete. 

The  discussion  by  Judge  Baldwin  of  the  right  of  a  state 
court  to  refuse  to  enforce  such  a  statute  as  the  one  in  question 
and  his  reference  to  the  "public  policy"  of  a  State  as  a 
ground  for  such  a  refusal  to  take  jurisdiction  indicate  clearly 
that  he  had  in  mind  the  decisions  as  to  the  exercise  of 
"comity"  by  the  courts  of  one  State  in  taking  jurisdiction 
of  foreign  laws ;  that  is,  the  laws  of  another  State.  There 
are  many  decisions  upon  the  right  of  a  party  to  enforce  in 
one  State  the  statutes  of  another. 

If  this  was  such  a  case,  there  is  authority  for  the  position 
taken  in  the  Hoxie  case.  But  the  decision  in  these  cases  is 
justified  on  the  ground  that  statutes  of  other  States  (foreign 
laws)  have  no  extraterritorial  force.  Such  decisions  have  no 
bearing  when  the  question  before  a  state  court  is  the  enforce- 
ment of  a  Federal  law.  This  is  not  a  mere  question  of  comity; 
it  is  a  question  of  aiitliority. 

The  Federal  law  is  imi)erative,  mandatory,  and  paramount 
over  every  foot  of  the  soil  of  every  State.  It  is  in  no  sense 
foreign  wlicn  its  application  or  enforcement  is  sought  in  the 


APPENDIX   B.  503 

courts  of  a  State.  No  policy  of  a  State  can  impair  its  impera- 
tive obligation.  No  official  of  a  State,  sworn  to  support  the 
Constitution  of  the  United  States  can  deny  the  enforcement 
of  a  statute  of  the  United  States,  made  in  pursuance  of  the 
United  States  Constitution.  Such  law  by  the  Constitution  is 
made  "the  supreme  law  of  the  land,  anything  in  the  Con- 
stitution or  laws  of  any  State  to  the  contrary  notwith- 
standing. ' ' 

How  can  a  judge  of  a  state  court  deny  the  imperative  obli- 
gation of  a  Federal  statute  on  any  occasion  in  his  court? 
Before  he  can  lawfully  assume  the  duties  as  such  state  judge 
he  is  bound  by  oath  in  obedience  to  the  express  requirements 
of  the  Constitution  (Art.  VI,  sec.  3)  to  support  the  Con- 
stitution of  the  United  States,  which  in  express  terms  makes 
Federal  statutes  "the  supreme  law  of  the  land,"  and  the 
judges  in  every  State  shall  be  bound  thereby,  "anything  in 
the  Constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding. ' ' 

Federal  laws  are  not  dependent  upon  the  judicial  courtesy 
of  state  courts,  to  be  enforceable  in  the  courts  of  some  States 
and  to  be  refused  enforcement  in  others.  They  are  "the  su- 
preme law  of  the  land,  and  the  judges  in  every  State-  shall  be 
bound  thereby. ' ' 

SURVIVAL   OF   ACTION, 

In  considering  the  advisability  of  amending  the  act  enti- 
tled "An  act  relating  to  the  liability  of  common  carriers  by 
railroads  to  their  employees  in  certain  cases, ' '  approved  April 
22,  1908,  it  is  important  at  the  outset  to  understand  that  the 
purpose  of  Congress  in  the  passage  of  this  act  was  to  extend 
further  protection  to  employees.  This  was  its  manifest  pur- 
pose, as  is  apparent  from  a  consideration  of  the  circum- 
stances of  its  enactment.  It  is  manifest  from  a  consideration 
of  the  reports,  both  of  the  Senate  and  House  committees,  w^heu 
the  measure  was  pending  before  those  bodies  prior  to  its  enact- 
ment, that  the  purpose  of  the  statute  was  to  extend  and 
enlarge  the  remedy  provided  by  law  to  employees  engaged 


594  FEDERAL   EMPLOYERS'    LIABILITY   ACT. 

in  interstate  commerce  in  cases  of  death  or  injury  to  such 
employees  while  engaged  in  such  service.  No  purpose  or  in- 
tent on  the  part  of  Congress  can  be  found  to  limit  or  to  take 
away  from  such  an  employee  any  right  theretofore  existing 
by  which  such  employees  were  entitled  to  a  more  extended 
remedy  than  that  conferred  upon  them  by  the  act. 

The  effect  of  decisions  of  cases  so  far  adjudicated  under 
the  act  has  been  in  general  to  recognize  the  true  intent  of 
Congress  and  to  extend  and  make  more  ample  the  right  to 
recover  damages  for  death  or  injury  to  interstate  servants, 
yet  in  some  particulars  its  operation  has  been  to  limit  a  re- 
covery which  otherwise  would  have  been  open  to  the  em- 
ployee or  his  representative. 

One  result  of  the  passage  of  the  law  may  be  to  nullify  state 
laws  affording  a  remedy  in  certain  cases  for  death  or  injury 
in  railroad  service.  The  state  laws  which  had  been  operative 
and  which  were  valid  even  in  their  application  to  those  en- 
gaged in  service  in  interstate  commerce  appear  to  have  been 
rendered,  as  to  interstate  servants,  ineffective  Avhen  Congress 
acted  upon  this  subject.  That  this  seems  to  have  been  the 
effect  of  the  passage  of  this  law  was  expressly  decided  in  a 
well-considered  opinion  by  Judge  Rogers  in  the  ease  of  Fulgam 
v.  Midland  Valley  E.  Co.  (167  Fed.,  660,  p.  662)  : 

It  is  clear  that  the  act  of  April  22,  1908,  supra,  superseded  and  took 
the  place  of  all  state  statutes  regulating  relations  of  employers  and 
employees  engaged  in  interstate  commerce  by  railroads.  It  covered  not 
only  injuries  sustained  by  employees  engaged  in  that  commerce  result- 
ing from  the  negligence  of  the  master  and  his  servants,  and  from 
defects  in  the  designated  instrumentalities  in  use  in  that  commerce,  but 
also  dealt  with  contributory  and  comparative  negligence  and  assumed 
risk,  making,  in  certain  cases  at  least,  the  master  an  insurer  of  the 
safety  of  the  servant  while  in  his  employment  in  that  commerce.  It 
covers  and  overlaps  the  whole  state  legislation,  and  is  therefore  exclu- 
sive. 

All  state  legislation  on  tliat  subject  must  give  way  before  that  act. 
(Miss.  Railroad  Gommis.sion  v.  111.  Cent.  R.  R.  Co.,  203  U.  S.  335; 
27  Sup.  Ct.,  00;  51  L.  Ed.,  2(M» ;  Siierlock  et  al.  v.  Ailing,  administrator, 
93  U.  S.,  104;  23  L.  Kd.,  %S10.)  Tlie.s©  last  cases  serve  to  show  that, 
until  Omgress  has  acted  with  reference  to  the  regulation  of  interstate 
commerce,  state  statutes  regulating  (he  rehvtions  of  master  and  servant 
and  incich'ntally  afrecting  interstate  commerce,  but  not  regulating  or 
obstructing  it,  may  be  given  <'irect ;  but  wlien  Congress  has  acted  upon 
a  given  subject  state  legisilation  must  yield. 


APPENDIX   B.  595 

In  Gulf,  Colorado,  etc.,  Railroad  Co.  v.  Hefley  (158  U.  S.,  99;  19 
Sup.  Ct.,  804;  3c>  L.  Ed.,  910)  the  court  said:  "When  a  state  statute 
and  a  federal  statute  operate  upon  the  same  subject-matter,  and  pre- 
scribe different  rules  concerning  it,  the  state  statute  must  give  way." 

When  Congress  acted  upon  the  subject  of  the  regulation 
of  the  liability  of  interstate  carriers  for  injuries  to  their  serv- 
ants engaged  in  interstate  commerce,  "the  State  was  thereby- 
precluded  from  enacting  any  law  of  that  sort  which  would 
have  that  effect,  for  the  field  of  policy  and  legislation  was 
thus  assumed  by  Congress  and  withdrawn  from  state  com- 
petency." (Wisconsin  v.  C.  M.  &  St.  P.  By.  Co.,  117  N. 
W.,  686.) 

In  the  course  of  his  opinion  in  the  case  above  cited,  Justice 
Dodge,  delivering  the  unanimous  opinion  of  the  supreme  court 
of  Wisconsin,  very  clearly  stated  this  doctrine  and  the  au- 
thority upon  which  it  was  based,  as  follows : 

Within  the  field  of  authorized  congressional  action  the  federal  power 
must,  in  the  nature  of  things,  be  siupreme  in  all  parts  of  the  United 
States.  "This  Constitution,  and  the  laws  of  the  United  States  whic'i 
shall  be  made  in  pursuance  thereof  *  *  *  siiall  be  the  supreme 
law  of  the  land;  and  the  judges  in  every  State  sliall  be  bound  thereby, 
anything  in  the  constitution  or  laws  of  any  State  to  the  contrary  not- 
withstanding." (Art.  VI,  par.  2,  Const.  U.  S.)  In  Cooley  v.  Board  of 
Wardens  (12  How.,  299,  318),  it  was  said  of  this  class  of  legislation: 
"It  is  not  the  mere  existence  of  such  power,  but  its  exercise  by  Con- 
gress, which  may  be  incompatible  with  the  exercise  of  the  same  power 
by  the  States,  and  that  the  States  may  legislate  in  the  absence  of 
congressional  legislation."  In  Pennsylvania  v.  Wheeling,  etc.,  Co.  ( 18 
How.,  431),  where  a  state  law  authorized  the  building  of  a  bridge  over 
a  navigable  water,  it  was  declared  that  even  in  the  matter  of  a  bridge 
"if  Congress  chooses  to  act,  its  action  necessarily  precludes  the  action 
of  the  State." 

In  United  States  v.  Colorado  &  N.  W.  R.  (157  Fed.  Rep., 
321,  330),  Sanborn,  J.,  remarks: 

"The  Constitution  reserved  to  the  nation  the  unlimited  power  to 
regulate  interstate  and  foreign  commerce,  and  if  that  power  can  not 
be  effectually  exercised  without  affecting  intrastate  commerce,  then 
Congress  may  undoubtedly  in  that  sense  regulate  intrastate  commerce 
so  far  as  necessary  in  order  to  regulate  interstate  commerce  fully  and 
effectually.  *  *  *  That  power  is  not  subordinate  but  is  paramount 
to  all  the  powers  of  the  States.  If  its  independent  and  lawful  exercise 
of  this  congressional  power  and  the  attempted  exercise  by  a  State  of 
any  of  its  powers  impinge  or  conHict,  the  former  must  prervail  and  the 
latter  must  give  way."  (See  also  Gibbons  v.  Ogden,  9  Wheat.,  1  209 
2110.) 


596  FEDERAL   EMPLOYERS'    LLIBILITY    ACT. 

It  will  be  observed  fi-om  these  utterances  that  it  is  not  a  mere 
question  of  conflicting  laws  in  the  two  jurisdictions,  so  that  the  law  of 
a  State  will  be  valid  so  far  as  not  antagonistic  to  a  federal  law.  The 
question  is  more  properly  one  of  jurisdiction  over  the  subject,  the 
holding  beiiig  that  within  the  second  class  of  subjects  above  outlined 
silence  of  Congress  is  deemed,  a  relegation  to  the  States  of  such  juris- 
diction and  authority,  but  action  by  Congress  upon  the  particular 
subject  is  deemed  an  assertion  of  the  federal  power,  a  declaration  of 
the  policy  that  the  subject  shall  be  under  federal  and  not  state  regula- 
tion, and  that,  therefore,  the  power  shall  no  longer  rest  in  the  State 
to  exercise  that  authority  which  by  the  Constitution  of  the  United  States 
was  surrendered  to  the  Federal  Government  when  and  if  Congress 
deemed  its  exercise  advisable. 

In  a  recent  decision  of  the  court  of  civil  appeals,  State  of 
Texas,  the  court  unanimously  stated  this  doctrine  as  follows : 

It  is  Avell  settled  that  the  power  of  Congress  to  regulate  interstate 
commerce  under  the  provisions  of  the  Constitution  before  mentioned  is 
plenary  and  includes  the  power  to  prescribe  the  qualifications,  duties, 
and  liabilities  of  employees  of  railway  companies  engaged  in  interstate 
commerce,  and  any  legislation  by  Congress  on  such  subject  supersedes 
anv  state  law  upon  the  same  subject.  (Railway  Co.  v.  Alabama,  128 
U.'S.,  99;  Howard  v.  Eailway  Co.,  207  U.  S.,  4C3.) 

The  constitutional  right  of  Congress  to  legislate  upon  this  subject 
having  been  exercised  by  that  body,  the  right  of  the  State  to  invade 
this  field  of  legislation  ceased,  or,  at  all  events,  no  act  of  a  state  legis- 
lature in  conflict  with  the  act  of  Congress  upon  the  same  subject  can 
be  held  valid.  The  supreme  courts  of  INIissouri  and  Wisconsin,  in  pass- 
ing upon  the  validity  of  statutes  of  said  States  similar  to  the  act  we 
are  considering,  hold  such  statutes  void  upon  the  ground  of  conflict 
with  the  act  of  Congress  before  mentioned.  ( State  v  Mo.  Pac.  Rv.  Co., 
Ill  S.  W.,  500;  State  v.  C.  M.  &  St.  P.  Ry.  Co.,  117  N.  W.,  686'.) 

Judge  Cooley,  in  his  work  on  Constitutional  Limitations, 

seventh  edition,  856,  said : 

It  is  not  doubted  that  Congress  has  the  power  to  go  beyond  the 
general  regulation  of  commcice  whicii  it  is  accustomed  to  establish,  and 
to  descend  to  the  most  minute  directions,  if  it  shall  be  deemed  advisable; 
and  that  to  whatever  extent  gi-ound  shall  be  covered  by  these  directions, 
the  exercise  of  sta/te  power  is  excluded. 

It  is  therefore  undoubtedly  the  law  that  congressional  ac- 
tion upon  the  liability  of  carriers  engaged  in  interstate  com- 
merce, for  injuries  to  their  employees,  supersedes  all  state 
legislation  upon  tlie  same  subject,  and  renders  them,  as  long 
as  the  Federal  law  remains  in  operation,  of  no  avail  as  pro- 
viding a  legal  remedy. 

Many  of  the  States  provide  by  statute  for  the  survival  of 
any  action  which  the  deceased  may  have  had  for  the  injury 


APPENDIX   B,  597 

to  his  estate,  and  for  any  expenditures  during  his  lifetime 

resulting  from  the  injury. 

In  the  phraseology  of  the  existing  Employers'  Liability  Act 

— that  is,  the  Act  of  April  22,  1908 — the  expression  used  is, 

as  to  the  question  now  under  consideration : 

Shall  be  liable  in  damages  *  *  *  in  case  of  the  death  of  such 
employee,  to  his  or  her  |>ersonal  representative  for  the  benefit  of  the 
surviving  widow  or  husband  and  children  of  such  employee;  and  if 
none,  then  of  such  employee's  parents;  and  if  none,  then  of  the  next 
of  kin  dependent  upon  such  employee,  for  such  injury  or  death  resulting 
in  whole  or  in  part  from  the  negligence  of  any  of  its  officers,  agents, 
employees,     *     *     *." 

In  the  case  of  Fulgam  v.  Midland  Valley  R.  R.  Company, 

hereinbefore  cited,  the  court  said : 

In  the  opinion  of  the  court,  right  of  action  given  to  the  injured 
employee  by  the  act  of  April  22,  1908,  does  not  survive  to  his  personal 
representative  in  the  event  of  his  death,  but,  at  common  law,  perishes 
with  the  injured  person. 

In  the  ease  of  Walsh,  admx.,  v.  New  York,  New  Haven  and 
Hartford  Railroad  Company,  Circuit  Judge  Lowell,  who  de- 
livered the  opinion  of  the  court,  said  in  a  case  arising  under 
the  Employers'  Liability  Act  of  April  22,  1908,  after  quoting 
the  case  of  Fulgam  v.  Midland  Valley  R.  R.  Co.  (167  Fed., 
660): 

The  defendant  has  further  demurred  to  counts  one  and  four,  con- 
tending that  the  employee's  cause  of  action  to  recover  for  his  conscious 
suffering  did  not  survive  to  his  administratrix,  although  the  existence 
of  some  of  the  statutory  relatives  was  alleged  As  the  cause  of  action 
is  given  by  a  federal  statute,  this  court  can  not  have  recourse  to  a 
state  statute  in  order  to  determine  whether  the  cause  of  action  survives 
or  not.  (Schreiber  v.  Sharpless,  110  U.  S.,  76,  80;  H.  &  O.  R.  R.  v. 
Joy,  173  U.  S.,  2'26,  230;  U.  S.  v  DeGoer,  38  Fed.,  80;  U.  S.  v.  Riley, 
104  Fed.,  275.)  Revised  Statutes,  section  955,  provides  that  "When 
either  of  the  parties,  M'hether  plaintiff  or  petitioner,  or  defendant,  in 
any  suit  in  any  court  of  the  United  (States,  dies  before  final  judgment, 
the  executor  or  administrator  of  such  deceased  party  may,  in  case  the 
cause  of  action  survives  by  law,  prosecute  or  defend  any  such  suit  to 
final  judigment."  This  section  does  not  itself  provide  what  causes  of 
action  snail  survive,  but  in  the  absence  of  other  controlling  statute 
leaves  the  matter  to  the  common  law.  In  the  case  at  bar,  therefore, 
the  state  statutes  are  inapplicable.  There  is  no  general  federal  statute, 
and  the  particular  s-tatute  in  question,  the  act  of  1908,  says  nothing 
about  survival. 

Thus  remitted  to  the  common  law,  at  which  survival  is  out  of  the 
question,  we  must  here  hold  that  the  cause  of  action  did  not  survive 
and  so  that  counts  one  and  four  are  demurrable.      (Fulgam  v.  Midland 


598  FEDERAL   EMPLOYERS'    LIABILITY    ACT. 

Valley  Co.,  167  Fed.,  660.)  The  court  is  justified  in  saying  that  this 
result  has  been  reached  with  reluctance.  The  maxim  "Actio  personalis 
moritur  cum  persona"  has  not  always  commended  itself.  (Pollock  on 
Torts,  Webb's  ed.,  p.  71.)  The  survival  of  the  cause  of  action  in  this 
case  is  allowed  by  the  statutes  of  many  States.  That  one  who  ha? 
suffered  in  body  and  in  purse  by  the  fault  of  another,  and  so  has  a 
cause  of  action  against  the  wrongdoer,  should,  as  to  his  own  estate,  be 
deprived  of  this  remetly  by  the  delays  of  the  law,  or  without  sucli  delay, 
by  his  death,  before  or  after  action  brought,  whether  connected  or 
unconnect-ed  with  his  first  injury,  seems  to  me,  as  to  Sir  Frederictc 
Pollock,  a  barbarous  rule.  The  intent  or  the  oversight  of  the  legislature 
has  established  the  rule  in  this  case. 

The  language  of  the  statute  should  be  made  clear  so  that 
the  uncertainty  and  obscurity  suggested  by  Judge  Lowell 
would  be  removed.  So  important  a  statute  should  be  made  so 
certain  in  its  terms  that  the  intent  of  Congress  may  be  made 
manifest  and  clear. 

It  certainly  should  be  as  broad,  as  comprehensive,  and  as 
inclusive  in  its  terms  as  any  of  the  similar  remedial  statutes 
existing  in  any  of  the  States,  which  are  suspended  in  their 
operation  by  force  of  the  Federal  legislation  upon  the  subject. 


APPENDIX   C. 


ENGLISH  EMPLOYERS'  LIABILITY  ACT. 


The  English  Employers'  Liability  Act  of  1880^  provides: 
■"Where  *  *  *  personal  injury  is  caused  to  a  work- 
man (1)  By  reason  of  any  defect  in  the  condition  of  the 
ways,  work,  machinery  or  plant  connected  with  or  used  in 
the  business  of  the  employer;  or  (2)  By  reason  of  the 
negligence  of  any  person  in  the  service  of  the  employer  who 
has  any  superintendence  entrusted  to  him  whilst  in  the  ex- 
ercise of  such  superintendence;  or  (3)  By  reason  of  the 
negligence  of  any  person  in  the  service  of  the  employer  to 
whose  orders  or  directions  the  workman  at  the  time  of  the 
injury  was  bound  to  conform,  and  did  conform,  where  such 
injury  resulted  from  his  having  to  conform;  or  (4)  By  rea- 
son of  the  act  or  omission  of  any  person  in  the  service  of 
the  employer  done  or  made  in  obedience  to  the  rules  or  by- 
laws of  the  employer  or  in  obedience  to  particular  instruc- 
tions given  by  any  person  delegated  with  the  authority  of 
the  employer  in  that  behalf;  or  (5)  By  reason  of  the  negli- 
gence of  any  person  in  the  service  of  the  employer  who  has 
the  charge  or  control  of  any  signal,  points,  locomotive  en- 
gine, or  train  upon  a  railway,  the  workman,  or  in  case  the 
injury  results  in  death,  the  legal  personal  representatives 
of  the  workman,  and  any  persons  entitled  in  case  of 
death,  shall  have  the  same  right  of  compensation 
and  remedies  against  the  employer  as  if  the  workman 
had  not  been  a  workman  of  nor  in  the  service  of 
the  employer,  nor  engaged  in  his  w^ork. "  "A  workman 
shall     not     be     entitled     under     this     act     to     any     right 

1  43  and  44  Vict.  42. 

599 


600  ENGLISH   employers'    LIABILITY   ACT. 

of  compensation  or  remedy  against  the  employer  in 
any  of  the  following  cases;  that  is  to  say:  (1)  Under  sub- 
section one  of  Section  one,  unless  the  defect  therein  men- 
tioned arose  from,  or  had  not  been  discovered  or  remedied 
owing  to  the  negligence  of  the  employer,  or -of  some  person 
in  the  service  of  the  emploA^er,  and  entrusted  by  him  with 
the  duty  of  seeing  that  the  ways,  works,  machinery,  or  plant 
were  in  proper  condition;  (2)  Under  sub-section  four  of 
Section  one,  unless  the  injury  resulted  from  some  impro- 
priety or  defect  in  the  rules,  by-laws,  or  instructions  therein 
mentioned;  provided,  that  where  a  rule  or  by-law  has  been 
approved  or  has  been  accepted  as  a  proper  rule  or  by-law 
by  one  of  Her  Majesty's  Principal  Secretaries  of  State,  or 
by  the  Board  of  Trade,  or  any  other  department  of  the 
government,  under  or  by  virtue  of  any  act  of  Parliament,  it 
shall  not  be  deemed  for  the  purposes  of  this  act  to  be  an 
improper  or  defective  rule  or  by-law;  (3)  In  any  case  where 
the  workman  knew  of  the  defect  or  negligence  which  caused 
his  injury,  and  failed  within  a  reasonable  time  to  give,  or 
cause  to  be  given,  information  thereof  to  the  employer  or 
some  person  superior  to  himself  in  the  service  of  the  em- 
ployer, unless  he  was  aware  that  the  employer  or  such 
superior  already   knew  of  the   said   defect   or   negligence." 

ENGLISH  ACT  CONSTRUED. 

In  Roberts'  Duty  and  Liability  of  Employers  it  is  said 
of  this  act:  "It  does  not  altogether  abolish  the  defense  of 
common  employment.-  It  does  not  make  the  employer  re- 
sponsible for  the  acts  of  persons  who  either  are  not  his 
servants,  or  are  not  acting  within  the  scope  of  their  employ- 
ment as  such.  It  does  not  make  him  responsible  for  acts  or 
omissions  which   do   not   constitute   a  breach  of   duty.^     It 

'Citing  r!ibb.s  v.  Great  Western  R.,    p.    1161;     Hamilton    v.    Hyde 

R.  Co.   12  Q.  B.  Div.  211;    Robins  Tark  Foundry  22     Sc.  L.  R.  709; 

V.  Cubit.  I4f;  L.  T.  535.  \Valsh   v.    Whitely,   21    Q.    B   Div, 

'Citing    Glrant    v.    Drysdale,    10  371. 


APPENDIX    C.  601 

does  not  create  a  new  cause  of  action  where  none  was  in 
existence  previously,*  but  only  adds  a  remedy  against  a  per- 
son other  than  the  wrongdoer,  or,  in  other  words,  directs  an 
old  cause  of  action  against  a  new  defendant.  It  does  not 
give  an  absolute  right  of  action,  but  merely  removes  one 
defense,^  placing  the  workman  even  when  all  the  conditions 
have  been  satisfied,  only  in  the  position  of  one  of  the  public.® 
From  which  it  follows  that  it  does  not  make  the  employer 
responsible  where  the  workman  has  been  guilty  of  contribu- 
tory negligence;^  or  has,  within  the  meaning  of  the  maxim, 
volenti  non  fit  injuria,  voluntarily  undertaken  the  conse- 
quences of  that  which  but  for  his  acceptance  of  the  risk 
would  have  constituted  a  breach  of  duty  on  the  part 
of  the  employer.**  It  does  not  impose  any  liability  on  the 
employer  in  favor  of  either  the  representatives  or  the  rela- 
tives of  an  injured  workman,  unless  the  workman's  death 
results  from  the  injury.  And  lastly,  it  does  not,  as  we  have 
seen,  deprive  the  workman  of  any  right  of  action  against 
the  employer  which  is  given  him  by  the  common  law. ' '  ^ 

*  Citing     Thomas      v.      Quarter-  '  Citing  Yarmouh   v.   France,    19 

main,  18  Q.  B.  Div.,  pp.  692,  693;  Q.  B.  Div.,  659. 

Morrison  v.  Baird,  10  R.,  p.  277;  'Roberts     Employers'     Liability 

Robertson  v.  Russell,  12  R.,  p.  638.  Act,  p.  248. 

°  Citing  Yarmouth  v.  France,  19 

Q.    B.    Div.,    p.    659 ;    Morrison   v.  ^  Note. — similar     sta4;utes    have 

Baird,  10  R.,  pp.  277,  278   (S.  C.)  been  held  constitutional.     Holden  v. 

•Citing  Thomas  v.  Quartermain,  Hardy,  169  U.  S.  366;   18  Sup.  Ct. 

18   Q.   B.   Div.,   p.   693;    Stuart  v.  Rep.  383.     But  see  Ritchie  v.  Peo- 

Evans,  31   W.  R.  706.  pie,    155   111.    98;    40   N.    E.    Rep. 

^  Citing  Thomas  v.  Quartermain,  454 ;  29  L.  R.  A.  79 ;  and  Low  v. 

at  p.  698.  Rees    Printing   Co.    41    Neb.    127; 

69  Pac.  Rep.  362;  24  L.  R.  A.  702. 


APPENDIX    D. 

SAFETY    APPLIANCE     ACTS. 

An  act  to  promote  the  safety  of  employes  and  travelers 
upon  railroads  b}^  compelling  common  carriers  engaged 
in  interstate  commerce  to  equip  their  cars  with  auto- 
matic couplers  and  continuous  brakes  and  their  loco- 
motives with  driving-wheel  brakes,  and  for  other 
purposes. 

Sec.  1.  Be  it  enacted  iy  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Congress  as- 
sembled. That  from  and  after  the  first  day  of  January, 
eighteen  hundred  and  ninety-eight,  it  shall  be  unlawful  for 
any  common  carrier  engaged  in  interstate  commerce  by  rail- 
road to  use  on  its  line  any  locomotive-engine  in  moving  inter- 
state traffic  not  equipped  with  a  power  driving-wheel  brake 
and  appliances  for  operating  the  train  brake  system  or  to  run 
any  train  in  such  traffic  after  said  date  that  has  not  a  suffi- 
cient number  of  oars  in  it  so  equipped  with  power  or  train 
brakes  that  the  engineer  on  the  locomotive  drawing  such  train 
can  control  its  speed  without  requiring  brakeman  to  use  the 
common  hand  brake  for  that  purpose. 

Sec.  2.  That  on  and  after  the  first  day  of  January, 
eighteen  hundred  and  ninety-eight,  it  shall  be  unlawful  for 
any  such  common  carrier  to  haul  or  permit  to  be  hauled  or 
used  on  its  line  any  car  used  in  moving  interstate  traffic  not 
equipped  with  couplers  coupling  automatically  by  impact, 
and  which  cau  Ix'  uncoupled  without  the  necessity  of  men 
going  between  the  ends  of  llic  cars. 

Note. — A  comma  should  be  inserted  after  the  word  "uncoupled"  in 
Section  2.  Johnson  v.  Southern  Pacific  (Jo.,  196  U.  S.,  1;  25  Sup.  Ct., 
1.58;  49  L.  IM.,  3G3,  revcrsinf,'  117  Fed.,  4(i2;  54  C.  C.  A.,  508;  Cliicago, 
M.  &  St.  P.  Ry.  Co.  V.  Voelkcr,  12'J  Fed.,  522;  see  United  States  v. 
Erie  K.  Co.,  IGG  Fed.,  352. 

602 


APPENDIX    D.  603 

Sec.  3.  That  when  any  person,  firm,  company,  or  cor- 
poration engaged  in  interstate  commerce  by  railroad  shall 
have  equipped  a  sufficient  number  of  its  cars  so  as  to  com- 
ply with  the  provisions  of  Section  one  of  this  act,  it  may 
lawfully  refuse  to  receive  from  connecting  lines  of  road  or 
shipper  any  cars  not  equipped  sufficiently,  in  accordance 
with  the  first  section  of  this  act,  with  such  power  or  train 
brakes  as  will  work  and  readily  interchange  with  the  brakes 
in  use  on  its  own  cars,  as  required  by  this  act. 

Sec.  4.  That  from  and  after  the  first  day  of  July,  eighteen 
hundred  and  ninety-five,  until  otherwise  ordered  by  the  In- 
terstate Commerce  Commission,  it  shall  be  unlawful  for  any 
railroad  company  to  use  any  car  in  interstate  commerce  that 
is  not  provided  with  secure  grab  irons  or  handholds  in  the 
ends  and  sides  of  each  car  for  greater  security  to  men  in 
coupling  and  uncoupling  cars. 

Sec.  5.  That  within  ninety  days  from  the  passage  of  this 
act  the  American  Railway  Association  is  authorized  hereby 
to  designate  to  the  Interstate  Commerce  Commission  the 
standard  height  of  draw  bars  for  freight  cars  measured  per- 
pendicular from  the  level  of  the  tops  of  the  rails  to  the 
centers  of  the  draw  bars,  for  each  of  the  several  gauges  of 
railroads  in  use  in  the  United  States,  and  shall  fix  a  maxi- 
mum variation  from  such  standard  height  to  be  allowed  be- 
tween the  draw  bars  of  empty  and  loaded  cars.  Upon  their 
determination  being  certified  to  the  Interstate  Commerce 
Commission,  said  Commission  shall  at  once  give  notice  of  the 
standard  fixed  upon  to  all  common  carriers,  owners,  or  lessees 
engaged  in  interstate  commerce  in  the  United  States  by  such 
means  as  the  Commission  may  deem  proper.  But  should  said 
association  fail  to  determine  a  standard  as  above  provided, 
it  shall  be  the  duty  of  the  Interstate  Commerce  Commission 
to  do  so,  before  July  first,  eighteen  hundred  and  ninety- 
four,  and  immediately  to  give  notice  thereof  as  aforesaid. 
And  after  July  first,  eighteen  hundred  and  ninety-five,  no 
cars,  either  loaded  or  unloaded,  shall  be  used  in  interstate 


604  FEDERAL   EMPLOYERS'    SAFETY   APPLIANCE   ACT. 

traffic  ■which   do  not  comply  with  the   standard  above   pro- 
vided for. 

Sec.  6.  That  any  such  common  carrier  using  any  loco- 
motive engine,  running  any  train,  or  hauling  or  permitting 
to  be  hauled  or  used  on  its  line  any  car  in  violation  of  any 
of  the  provisions  of  this  act,  shall  be  liable  to  a  penalty  of 
one  hundred  dollars  for  each  and  every  such  violation,  to  be 
recovered  in  a  suit  or  suits  to  be  brought  by  the  United  States 
district  attorney  in  the  District  Court  of  the  United  States 
having  jurisdiction  in  the  locality  where  such  violation  shall 
have  been  committed ;  and  it  shall  be  the  duty  of  such  dis- 
trict attorney  to  bring  such  suits  upon  duly  verified  informa- 
tion being  lodged  with  him  of  such  violation  having  occurred ; 
and  it  shall  also  be  the  duty  of  the  Interstate  Commerce 
Commission  to  lodge  with  the  proper  district  attorneys  in- 
formation of  any  such  violations  as  may  come  to  its  knowl- 
edge, Provided,  That  nothing  in  this  act  contained  shall 
apply  to  trains  composed  of  four-wheeled  cars  or  to  trains 
composed  of  eight-wheel  standard  logging  cars  where  the 
height  of  such  car  from  top  of  rail  to  center  of  coupling  does 
not  exceed  twenty-five  inches,  or  to  locomotives  used  in  haul- 
ing such  trains  when  such  cars  or  locomotives  are  exclusively 
used  for  the  transportation  of  logs.  (As  amended  April  1, 
1896,  29  U.  S.  Stat,  at  L.,  85,  ch.  87.) 

Sec.  7.  That  the  Interstate  Commerce  Commission  may 
from  time  to  time  upon  full  hearing  and  for  good  cause  ex- 
tend the  period  within  which  any  common  carrier  shall  com- 
ply with  the  provisions  of  this  act. 

Sec.  8.  That  any  employe  of  any  such  carrier  who  may 
be  injured  by  any  locomotive,  car,  or  train  in  use  contrary 
to  the  provisions  of  this  act  shall  not  be  deemed  thereby  to 
have  assumed  the  risk  thereby  occasioned,  although  continu- 
ing in  the  employment  of  such  carrier  after  the  unlawful 
use  of  siu'h  locomotive,  car,  or  train  had  been  brought  to 
his  knowledge. 

Approved,  March  2,  1893,  27  U.  S.  Stat,  at  Large,  531, 
ch.  190. 

XoiK. — ^As  to  juristliction  of  tlie  Circuit  Court  of  the  District  of 
CoJuinbia,  tme  UnitesI  Slates  v.  IJaltimore  &  0   II.  Co.,  2G  App.  D.  €.,  851. 


APPENDIX   D.  605 

An  act  to  amend  an  act  entitled,  "An  act  to  promote  the 
safety  of  employes  and  travelers  upon  railroads  by  com- 
pelling common  carriers  engaged  in  interstate  commerce 
to  equip  their  cars  with  automatic  couj^lers  and  continu- 
ous brakes  and  their  locomotives  with  driving-wheel 
brakes,  and  for  other  purposes,"  approved  March  second, 
eighteen  hundred  and  ninety-three,  and  amended  April 
first,  eighteen  hundred  and  ninety-six.  (Public  No.  133, 
approved  March  2,  1903.) 

Sec.  1.  Be  it  enacted  hy  the  Senate  and  House  of  Rep- 
resentatives of  the  United  State  of  America  in  Congress  as- 
sembled, That  the  provisions  and  requirements  of  the  Act 
entitled  "An  Act  to  promote  the  safety  of  employees  and 
travelers  upon  railroads  by  compelling  common  carriers  en- 
gaged in  interstate  commerce  to  equip  their  cars  with  auto- 
matic couplers  and  continuous  brakes,  and  their  locomotives 
with  driving-wheel  brakes,  and  for  other  purposes,"  approved 
March  second,  eighteen  hundred  and  ninety-three,  and 
amended  April  first,  eighteen  hundred  and  ninety-six,  shall 
be  held  to  apply  to  common  carriers  by  railroads  in  the 
Territories  and  the  District  of  Columbia  and  shall  apply  in 
all  cases,  whether  or  not  the  couplers  brought  together  are 
of  the  same  kind,  make,  or  type,  and  the  provisions  and 
requirements  hereof  and  of  said  Acts  relating  to  train  brakes, 
automatic  couplers,  grab  irons,  and  the  height  of  drawbars 
shall  be  held  to  apply  to  all  trains,  locomotives,  tenders, 
cars  and  similar  vehicles  used  on  any  railroad  engaged  in 
interstate  commerce,  and  in  the  Territories  and  the  District 
of  Columbia,  and  to  all  other  locomotives,  tenders,  cars,  and 
similar  vehicles  used  in  connection  therewith,  excepting 
those  trains,  cars,  and  locomotives  exempted  by  the  provisions 
of  section  six  of  said  Act  of  March  second,  eighteen  hundred 
and  ninety-three,  as  amended  by  the  Act  of  April  first, 
eighteen  hundred  and  ninety-six.  or  which  are  used  upon 
street  railways. 

Sec.  2.  That  whenever,  as  provided  in  said  Act,  any  train 


606  FEDER.y:,  employers'  safety  appliance  act. 

is  operated  with  power  or  train  brakes,  not  less 
than  fifty  per  centum  of  the  cars  in  such  train 
shall  have  their  brakes  used  and  operated  by  the 
the  engineer  of  the  locomotive  drawing  such  train ; 
and  all  power-braked  cars  in  such  train  which  are 
associated  together  with  said  fifty  per  centum  shall  have 
their  brakes  so  used  and  operated;  and,  to  more  fully  carry 
into  effect  the  objects  of  said  Act  the  Interstate  Commerce 
Commission  may,  from  time  to  time,  after  full  hearing,  in- 
crease the  minimum  percentage  of  cars  in  any  train  required 
to  be  operated  with  power  or  train  brakes  which  must 
have  their  brakes  used  and  operated  as  aforesaid ;  and  failure 
to  comply  with  any  such  requirement  of  the  said  Interstate 
Commerce  Commission  shall  be  subject  to  the  like  penalty  as 
failure   to   comply  with   any  requirement   of  this   section. 

Sec.  3.  That  the  provisions  of  this  Act  shall  not  take 
effect  until  September  first,  nineteen  hundred  and  three. 
Nothing  in  this  Act  shall  be  held  or  construed  to  relieve  any 
common  carrier,  the  Interstate  Commerce  Commission,  or 
any  United  States  District  attorney  from  any  of  the  provi- 
sions, powers,  duties,  liabilities,  or  requirements  of  said  Act 
of  March  second,  eighteen  hundred  and  ninety-three,  as 
amended  by  the  Act  of  April  first,  eighteen  hundred  and 
ninety-six;  and  all  of  the  provisions,  powers,  duties,  require- 
ments and  liabilities  of  said  Act  of  March  second,  eighteen 
hundred  and  ninety-three,  as  amended  by  the  Act  of  April 
first,  eighteen  hundred  and  ninety-six,  shall,  except  as  spe- 
cifically amended  by  this  Act,  apply  to  this  Act. 


LADDERS,  HAND  BRAKES,  HAND  HOLDS. 

[Public  No.  133.] 

[H.  R.  5702.] 

A>'  Act  to  siipploniont  "An  Act  to  promote  the  safety  of  omployoos 
and  triivelers  ujjon  ruilroads  by  compelling  common  carriers  engaged  in 
interstate  eommerce  to  ecpiip  their  cars  with  automatic  couplers  and 
continuous  brakes  and  their  locomotives  with  driving  wheel  brakes  and 


APPENDIX   D.  607 

for  other   purposes,"   and  other   safety   appliance   Acts,    and   for    otlier 
purposes. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That 
the  provisions  of  this  Act  sliall  apply  to  every  common  carrier 
and  every  vehicle  subject  to  the  Act  of  March  second,  eighteen 
hundred  and  ninety-three,  as  amended  April  first,  eighteen 
hundred  and  ninety-six,  and  March  second,  nineteen  hundred 
and  three,  commonly  known  as  the  ' '  Safety  Appliance  Acts. ' ' 

Sec.  2.  That  on  and  after  July  first,  nineteen  hundred  and 
eleven,  it  shall  be  unlawful  for  any  common  carrier  subject 
to  the  provisions  of  this  Act  to  haul,  or  permit  to  be  hauled 
or  used  on  its  line  any  car  subject  to  the  provisions  of  this 
Act  not  equipped  with  appliances  provided  for  in  this  Act, 
to-wit :  All  cars  must  be  equipped  with  secure  sill  steps  and 
efficient  hand  brakes ;  all  cars  requiring  secure  ladders  and 
secure  running  boards  shall  be  equipped  with  such  ladders 
and  running  boards,  and  all  cars  ha\'ing  ladders  shall  also  be 
equipped  with  secure  hand  holds  or  grab  irons  on  their  roofs 
at  the  tops  of  such  ladders :  Provided,  That  in  the  loading 
and  hauling  of  long  commodities,  requiring  more  than  one 
car,  the  hand  brakes  may  be  omitted  on  all  save  one  of  the 
cars  while  they  are  thus  combined  for  such  purpose. 

Sec.  3.  That  within  six  months  from  the  passage  of  this 
Act  the  Interstate  Commerce  Commission,  after  hearing,  shall 
designate  the  number,  dimensions,  location,  and  manner  of 
application  of  the  appliances  provided  for  by  section  two  of 
this  Act  and  section  four  of  the  Act  of  March  second,  eighteen 
hundred  and  ninety-three,  and  shall  give  notice  of  such  desig- 
nation to  all  common  carriers  subject  to  the  provisions  of  this 
Act  by  such  means  as  the  commission  may  deem  proper,  and 
thereafter  said  number,  location,  dimensions,  and  manner  of 
application  as  designated  by  said  commission  shall  remain  as 
the  standards  of  equipment  to  be  used  on  all  cars  subject  to 
the  provisions  of  this  Act,  unless  changed  by  an  order  of  said 
Interstate  Commerce  Commission,  to  be  made  after  full  hear- 
ing and  for  good  cause  shoAvn;  and  failure  to  comply  with 


608  FEDERAL,   EMPLOYERS'    SAFETY   APPLIANCE   ACT. 

any  such  requirement  of  the  Interstate  Commerce  Commis- 
sion, to  be  made  after  full  hearing,  and  for  good  cause  shown ; 
and   failure   to   comply  with   any   such    requirement   of   the 
Interstate  Commerce   Commission  shall  be  subject   to  a  like 
penalty  as  failure  to  comply  with  any  requirement  of  this 
Act:    Provided,  That  the  Interstate  Commerce  Commission 
may.  upon  full  hearing  and  for  good  cause,  extend  the  period 
within  which  any  common  carrier  shall  comply  wdth  the  pro- 
visions of  this  section  with  respect  to  the  equipment  of  cars 
actually  in  service  upon  the  date  of  the  passage  of  this  Act. 
Said  commission  is  hereby  given  authority,  after  hearing,  to 
modify  or  change,  and  to  prescribe  the  standard  height  of 
drawbars  and  to  fix  the  time  within  which  such  modification 
or  change  shall  become  effective  and  obligatory,  and  prior  to 
the  time  so  tixed  it  shall  be  unlawful  to  use  any  car  or  vehicle 
in  interstate  or  foreign  traffic  which  does  not  comply  with 
the  standard  now  fixed  or  the  standard  so  prescribed,  and 
after  the  time  so  fixed  it  shall  be  unlawful  to  use  any  car  or 
vehicle  in  interstate  or  foreign  traffic  which  does  not  comply 
with  the  standard  so  prescribed  by  the  commission. 

Sec.  4.  That  any  common  carrier  subject  to  this  Act  using, 
hauling,  or  permitting  to  be  used  or  hauled  on  its  line,  any 
car  subject  to  the  requirements  of  this  Act  not  equipped  as 
provided  in  this  Act,  shall  be  liable  to  a  penalty  of  one  hun- 
dred dollai-s  for  each  and  every  such  violation,  to  be  recov- 
ered as  provided  in  section  six  of  the  Act  of  March  second, 
eighteen  hundred  and  ninety-three,  as  amended  April  first, 
eighteen  hundred  and  ninety-six:  Provided,  That  where  any 
car  shall  have  been  properly  equipped,  as  provided  in  this 
Act  and  the  other  Acts  mentioned  herein,  and  such  equip- 
ment shall  have  become  defective  or  insecure  while  such  car 
was  being  used  by  such  carrier  upon  its  line  of  railroad,  such 
car  may  be  hauled  from  the  place  where  such  equipment  was 
first  discovered  to  be  defective  or  insecure  to  the  nearest 
available  point  w^hore  sucli  car  can  be  repaired,  without  lia- 
bility for  the  penalties  imposed  by  section  four  of  this  Act 


APPENDIX   D.  609 

or  section  six  of  the  Act  of  March  second,  eighteen  liundred 
and  ninety-three  as  amended  by  the  Act  of  April  first, 
eighteen  hundred  and  ninety-six,  if  such  movement  is  neces- 
sary to  make  such  repairs  and  such  repairs  can  not  be  made 
except  at  such  repair  point;  and  such  movement  or  hauling 
of  such  car  shall  be  at  the  sole  risk  of  the  carrier,  and  nothing 
in  this  section  shall  be  construed  to  relieve  such  carrier  from 
liability  in  any  remedial  action  for  the  death  or  injury  of 
any  railroad  employee  caused  to  such  employee  by  reason  of 
or  in  connection  with  the  movement  or  hauling  of  such  car 
with  equipment  which  is  defective  or  insecure  or  which  is  not 
maintained  in  accordance  with  the  requirements  of  tliis  Act 
and  the  other  Acts  herein  referred  to;  and  nothing  in  this 
proviso  shall  be  construed  to  permit  the  hauling  of  defective 
cars  by  means  of  chains  instead  of  drawbars,  in  revenue  trains 
or  in  association  with  other  cars  that  are  commercially  used, 
unless  such  defective  cars  contain  live  stock  or  "perishable" 
freight. 

Sec.  5.  That  except  that,  within  the  limits  specified  in  the 
preceding  section  of  this  Act,  the  movement  of  a  car  with 
defective  or  insecure  equipment  may  be  made  without  in- 
curring the  penalty  provided  by  the  statutes,  but  shall  in  all 
other  respects  be  unlawful,  nothing  in  this  Act  shall  be  held 
or  construed  to  relieve  any  common  carrier,  the  Interstate 
Commerce  Commission,  or  any  United  States  attorney  from 
any  of  the  provisions,  powers,  duties,  liabilities,  or  require- 
ments of  said  Act  of  ]\rarch  second,  eighteen  hundred  and 
ninety-three,  as  amended  by  the  Acts  of  April  first,  eighteen 
hundred  and  ninety -six,  and  March  second,  nineteen  hundred 
and  three ;  and,  except  as  aforesaid,  all  of  the  pro^dsions, 
powers,  duties,  requirements  and  liabilities  of  said  Act  of 
March  second,  eighteen  hundred  and  ninety-three,  as  amended 
by  the  Acts  of  April  first,  eighteen  hundred  and  ninety-six, 
and  March  second,  nineteen  hundred  and  three,  shall  apply 
to  this  Act. 

Sec.  6.  That  it  shall  be  the  duty  of  the  Interstate  Com- 
merce Commission  to  enforce  the  provisions  of  this  Act,  and 


610  FEDERAL    EMPLOYERS'    SAFETY    APPLIANCE    ACT. 

all  powers  heretofore  granted  to  said  commission  are  hereby 
extended  to  it  for  the  purpose  of  the  enforcement  of  this 
Act. 

Approved,  April  14,  1910. 


ORDER  OF  THE  INTERSTATE  COMMERCE  COMMIS- 
SION, JUNE  6,  1910. 

IN  THE  MATTER  OF  REQUIRING  AN  INCREASE  IN 
THE  MINIMUM  PERCENTAGE  OF  BRAKES. 

The  Commission  having  under  consideration  the  question 
of  requiring  an  increase  in  the  minimum  percentage  of  power 
brakes  to  be  used  and  operated  on  trains  and  railroads  en- 
gaged in  interstate  commerce,  as  provided  by  section  two  of 
the  Act  of  March  2,  1903,  and  it  appearing  to  the  Commis- 
sion, after  full  hearing  had  on  May  5,  1909,  due  notice  of 
which  was  given  all  common  carriers,  owners  and  lessees 
engaged  in  interstate  commerce  by  railroad  in  the  United 
States,  and  at  which  time  all  interested  parties  were  given 
an  opportunity  to  be  heard  and  submit  their  views,  that  to 
secure  more  fully  the  objects  of  the  Act  to  promote  the  safety 
of  employees  and  travelers  on  railroads,  the  minimum  per- 
centage of  power-brake  cars  to  be  used  in  trains,  as  established 
by  its  order  of  November  15,  1905,  should  be  further  in- 
creased. 

It  is  ordered,  That  on  and  after  September  1,  1910,  on  all 
railroads  used  in  interstate  commerce,  whenever,  as  required 
by  the  Safety  Appliance  Act  as  amended  March  2,  1903,  any 
train  is  operated  with  power  or  train  brakes,  not  less  than 
85%  of  the  cars  of  such  train  shall  have  their  brakes  used 
and  operated  by  the  engineer  of  the  locomotive  drawing  such 
train,  and  all  power-brake  cars  in  every  such  train  which  are 
associated  together  with  the  85%  shall  have  their  brakes  so 
used  and  operated. 


APPENDIX   D.  611 

ORDER  OF  THE  INTERSTATE  COMMERCE  COMMIS- 
SION, OCTOBER  10,  1910. 

IN  THE  MATTER  OF  THE  STANDARD  HEIGHT  OF 
DRAWBARS. 

"Whereas,  By  the  third  section  of  an  Act  of  Congress  ap- 
proved April  14,  1910,  entitled  "An  Act  to  supplement  'An 
Act  to  promote  the  safety  of  employees  and  travelers  upon 
railroads  by  compelling  common  carriers  engaged  in  inter- 
state commerce  to  equip  their  cars  with  automatic  couplers 
and  continuous  brakes,  and  their  locomotives  with  driving- 
wheel  brakes,  and  for  other  purposes,'  and  other  safety  appli- 
ance acts,  and  for  other  purposes,"  it  is  provided,  among 
other  things,  that  the  Interstate  Commerce  Commission  is 
hereby  given  authority,  after  hearing,  to  modify  or  change 
and  to  prescribe  the  standard  height  of  drawbars,  and  to  fix 
the  time  within  which  such  modification  or  change  shall 
become  effective  and  obligatory;  and 

Whereas,  A  hearing  in  the  matter  of  any  modification  or 
change  in  the  standard  height  of  drawbars  was  held  before 
the  Interstate  Commerce  Commission  at  its  office  in  Wash- 
ington, D.  C,  on  June  7,  1910; 

Now,  THEREFORE,  In  pursuance  of  and  in  accordance  with 
the  provisions  of  said  Section  3  of  said  Act. 

It  is  ordered,  That  (except  on  cars  specified  in  the  proviso 
in  Section  6  of  the  Safety  Appliance  Act  of  March  2,  1893, 
as  the  same  was  amended  April  1,  1896),  the  standard  height 
of  drawbars  heretofore  designated  in  compliance  with  law 
is  hereby  modified  and  changed  in  the  manner  hereinaftei 
prescribed,  to-wit :  The  maximum  height  of  drawbars  foi 
freight  cars  measured  perpendicularly  from  the  level  of  the 
tops  of  rails  to  the  centers  of  drawbars  for  standard-gauge 
railroads  in  the  United  States  subject  to  said  Act  shall  be 
341/t  inches,  and  the  minimum  height  of  drawbars  for  freight 
cars  on  such  standard-gauge  railroads  measured  in  the  same 
manner  shall  be  31 V2  inches,  and  on  narrow-gauge  railroads 
in  the  United  States  subject  to  said  Act  the  maximum  height 


612  FEDERAL    EMPLOYERS'    S.AJETY    APPLL\NCE    ACT. 

of  drawbars  for  freight  cars  measured  from  the  level  of  the 
tops  of  rails  to  the  centers  of  drawbars  shall  be  26  inches, 
and  the  minimum  height  of  drawbars  for  freight  cars  on 
such  narrow-gauge  railroads  measured  in  the  same  manner 
shall  be  23  inches,  and  on  2-foot-gauge  railroads  in  the  United 
States  subject  to  said  Act  the  maximum  height  of  drawbars 
for  freight  cars  measured  from  the  level  of  the  tops  of  rails 
to  the  centers  of  drawbars  shall  be  11  Yo  inches,  and  the 
minimum  height  of  drawbars  for  freight  cars  on  such  2-foot- 
gauge  railroads  measured  in  the  same  manner  shall  be  14i'2 
inches. 

And  it  is  further  ordered,  That  such  modification  or  change 
shall  become  effective  and  obligatory  December  31,  1910. 


Commissioners. 


At  a  General  Session  op  the  Interstate  Commerce  Com- 
mission, HELD  at  its  Office  in  Washington,  D.  C,  on 
THE  13th  Day  of  March,  A.  D.,  1911. 

Present : 

JuDSON  C.  Clements, 
Charles  A.  Prouty, 
Franklin  K.  Lane, 
Edgar  E.  Clark, 
James  S.  Harlan, 
Charles  C.  McChord, 
Balthasar  H.  Meyer, 

IN  THE  ^MATTER  OF  DESIGNATING  THE  NUMBER, 
DIMENSIONS,  LOCATION,  AND  MANNER  OF  APPLI- 
CATION OF  CERTAIN  SAFETY  APPLIANCES. 

Whereas  by  the  third  section  of  an  act  of  Congress  approved 
April  14,  1910,  entitled  "An  act  to  supplement  *An  act  to 
promote  the  safety  of  employees  and  travelers  upon  railroads 
by  compelling  common  carriers  engaged  in  interstate  com- 
merce to  equip  their  cars  with  automatic  couplers  and  con- 
tinuous   brakes    and    their    locomotives    ^\^th    driving-wheel 


APPENDIX   D.  613 

brakes,  and  for  other  purposes,'  and  other  safety  appliance 
acts,  and  for  other  purposes,"  it  is  provided,  among  otlier 
things,  "That  within  six  months  from  tlie  passage  of  tliis  act 
the  Interstate  Commerce  Commission,  after  hearing,  shall  des- 
ignate the  number,  dimensions,  location,  and  manner  of  appli- 
cation of  the  appliances  provided  for  by  Section  two  of  this 
act  and  Section  four  of  the  act  of  March  second,  eighteen 
hundred  and  ninety-three,  and  shall  give  notice  of  such  desig- 
nation to  all  common  carriers  subject  to  the  provisions  of 
this  act  by  such  means  as  the  Commission  may  deem  proper, 
and  thereafter  said  number,  location,  dimensions,  and  manner 
of  application  as  designated  by  said  Commission  shall  remain 
as  the  standards  of  equipment  to  be  used  on  all  cars  subject 
to  the  provisions  of  this  act,  unless  changed  by  an  order  of 
said  Interstate  Commerce  Commission,  to  be  made  after  full 
hearing  and  for  good  cause  shown;  and  failure  to  comply 
with  such  requirement  of  the  Interstate  Commerce  Commission 
shall  be  subject  to  a  like  penalty  as  failure  to  comply  with 
any  requirement  of  this  Act:  Provided,  That  the  Interstate 
Commerce  Conmiission  may,  upon  full  hearing  and  for  good 
cause,  extend  the  period  within  which  any  common  carrier 
shall  comply  with  the  provisions  of  this  section  with  respect 
to  the  equipment  of  cars  actually  in  service  upon  the  date  of 
passage  of  this  act;"  and 

Whereas  hearings  in  the  matter  of  the  number,  dimensions, 
location,  and  manner  of  application  of  the  appliances,  as  pro- 
\dded  in  said  section  of  said  act,  were  held  before  the  Inter- 
state Commerce  Commission  at  its  office  in  Washington,  D.  C, 
on  September  29th  and  30th  and  October  7th,  1910,  respec- 
tively ;  and  February  27th,  1911 ; 

Now,  therefore,  in  pursuance  of  and  in  accordance  with  the 
provisions  of  said  Section  three  of  said  act,  and  superseding 
the  Commission's  order  of  October  13,  1910,  relative  thereto 

It  is  ordered,  That  the  number,  dimensions,  location,  and 
manner  of  application  of  the  appliances  provided  for  by 
Section  two  of  the  Act  of  April  14,  1910,  and  Section  four  of 
the  Act  of  March  2,  1893,  shall  be  as  follows : 


614  FEDER.IL   employers'    SAEETY    APPLIANCE   ACT. 

BOX  AND  OTHER  HOUSE  CARS. 
Hand-brakes. 

Number:  Each  box  or  other  house  ear  shall  be  equipped 
with  an  efficient  hand-brake  which  shall  operate  in  harmony 
with  the  power-brake  thereon. 

The  hand-brake  may  be  of  any  efficient  design,  but  must 
provide  the  same  degree  of  safety  as  the  design  shown  on 
Plate  A. 

Dimensions  :  The  brake-shaft  shall  be  not  less  than  one  and 
one-fourth  (I14)  inches  in  diameter,  of  wrought  iron  or  steel 
"Without  weld. 

The  brake-wheel  may  be  flat  or  dished,  not  less  than  fifteen 
(15),  preferably  sixteen  (36)  inches  in  diameter,  of 
malleable  iron,  wrought  iron  or  steel. 

Location:  The  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car,  to  the  left 
of  and  not  less  than  seventeen  (17)  nor  more  than  twenty-two 
(22)  inches  from  center. 

Manner  op  Application  :  There  shall  be  not  less  than  four 
(4)  inches  clearance  around  rim  of  brake-wheel. 

Outside  edge  of  brake-wheel  shall  be  not  less  than  four  (4) 
inches  from  a  vertical  plane  parallel  with  end  of  car  and  pass- 
ing through  the  inside  face  of  knuckle  when  closed  with 
coupler-horn  against  the  buffer-block  or  end-sill. 

Top  brake-shaft  support  shall  be  fastened  with  not  less  than 
one-half  (I/2)  iiich  bolts  or  rivets.     (See  Plate  A.) 

A  brake-shaft  step  shall  support  the  lower  end  of  brake- 
shaft.  A  brake-shaft  step  which  will  permit  the  brake-chain 
"to  drop  under  the  brake-shaft  shall  not  be  used.  U-shaped 
form  of  brake-shaft  step  is  preferred.     (See  Plate  A.) 

Brake-sliaft  shall  be  arranged  with  a  square  fit  at  its  upper 
end  to  secure  the  hand-brake  wheel ;  said  square  fit  shall  be 
not  less  than  seven-eighths  ("%)  of  an  inch  square.  Square-fit 
taper;  nominally  two  (2)  in  twelve  (12)  inches.  (See 
Plate  A.) 


APPENDIX   D.  615 

Brake-chain  shall  be  of  not  less  than  three-eighths  (%), 
preferably  seven-sixteenths  (7-16)  inch  wrought  iron  or  steel, 
with  a  link  on  the  brake-rod  end  of  not  less  than  seven- 
sixteenths  (7-16),  preferably  one-half  (Yo)  inch  wrought  iron 
or  steel,  and  shall  be  secured  to  brake-shaft  drum  by  not  less 
than  one-half  (i/^)  inch  hexagon  or  square-headed  bolt.  Nut 
on  said  bolt  shall  be  secured  by  riveting  end  of  bolt  over  nut. 
(See  Plate  A.) 

Lower  end  of  brake-shaft  shall  be  provided  with  a  trunnion 
of  not  less  than  three-fourths  {%),  preferably  one  (1)  inch 
in  diameter  extending  through  brake-shaft  step  and  held  in 
operating  position  by  a  suitable  cotter  or  ring.    (See  Plate  A.) 

Brake-shaft  drum  shall  be  not  less  than  one  and  one-half 
(II/2)  inches  in  diameter.     (See  Plate  A.) 

Brake  ratchet-wheel  shall  be  secured  to  brake-shaft  by  a 
key  or  square  fit ;  said  square  fit  shall  be  not  less  than  one 
and  five-sixteenths  (1  5-16)  inches  square.  Wlien  ratchet- 
wheel  with  square  fit  is  used  provision  shall  be  made  to  prevent 
ratchet-wheel  from  rising  on  shaft  to  disengage  brake-pawl. 
(See  Plate  A.) 

Brake  ratchet-wheel  shall  be  not  less  than  five  and  one- 
fourth  (514),  preferably  five  and  one-half  (5i^)  inches  in 
diameter  and  shall  have  not  less  than  fourteen  (14),  prefer- 
ably sixteen  (16)    teeth.     (See  Plate  A.) 

If  brake  ratchet-wheel  is  more  than  thirty-six  (36)  inches 
from  brake-wheel,  a  brake-shaft  support  shall  be  provided  to 
support  this  extended  upper  portion  of  brake-shaft;  said 
brake-shaft  support  shall  be  fastened  with  not  less  than  one- 
half  (iy4)  inch  bolts  or  rivets. 

The  brake-pawl  shall  be  pivoted  upon  a  bolt  or  rivet  not 
less  than  five-eighths  (%)  of  an  inch  in  diameter,  or  upon  a 
trunnion  secured  by  not  less  than  one-half  (I/2)  inch  bolt  or 
rivet,  and  there  shall  be  a  rigid  metal  connection  between 
brake-shaft  and  pivot  of  pawl. 

Brake-wheel  shall  be  held  in  position  on  brake-shaft  by  a 
nut  on  a  threaded  extended  end  of  brake-shaft ;  said  threaded 
portion  shall  be  not  less  than  three-fourths  (%)  of  an  inch  in 


616  FEDERAL   EMPLOYERS'    SAPETY    APPLL\NCE    ACT. 

diameter :  said  nut  shall  be  secured  by  riveting  over  or  by  the 
use  of  a  lock-nut  or  suitable  cotter. 

Brake-wheel  shall  be  arranged  with  a  square  tit  for  brake- 
shaft  in  hub  of  said  wheel;  taper  of  said  fit,  nominally  two 
(2)  in  twelve  (12)  inches.     (See  Plate  A.) 

Brake-step. 

If  brake-step  is  used,  it  shall  be  not  less  than 
twenty-eight  (28)  inches  in  length.  Outside  edge  shall  be  not 
less  than  eight  (8)  inches  from  face  of  car  and  not  less  than 
four  (4)  inches  from  a  vertical  plane  parallel  with  end  of  car 
and  passing  through  the  inside  face  of  knuckle  when  closed 
with  coupler-horn  against  the  buffer-block  or  end-sill. 

]Manner  of  Application:  Brake-step  shall  be  supported 
by  not  less  than  two  metal  braces  having  a  minimum  cross- 
sectional  area  three-eighths  (%)  by  one  and  one-half  (IV2) 
inches  or  equivalent,  which  shall  be  securely  fastened  to  body 
of  car  with  not  less  than  one-half  (i/o)  inch  bolts  or  rivets. 

Running-boards. 

Number:    One  (1)  longitudinal  running-board. 

On  outside-metal-roof  cars  two  (2)  latitudinal  extensions. 

Dimensions  :  Longitudinal  running-board  shall  be  not  less 
than  eighteen  (18),  preferably  twenty  (20)    inches  in  ^^ddth. 

Latitudinal  extensions  shall  be  not  less  than  twenty-four 
(24)  inches  in  width. 

Location  :  Full  length  of  car,  center  of  roof. 

On  outside-metal-roof  cars  there  shall  be  two  (2)  latitudinal 
extensions  from  longitudinal  running-board  to  ladder  loca- 
tions, except  on  refrigerator  cars  where  such  latitudinal  ex- 
tensions can  not  be  applied  on  account  of  ice  hatches. 

M.\nner  op  Application  :  Running-boards  shall  be  continu- 
ous from  end  to  end  and  not  cut  or  hinged  at  any  point :  Pro- 
vidfd,  That  the  length  and  width  of  ninning-boards  may  be 
mad*'  uf)  of  ;i  ntinilxT  of  pieces  securely  fastened  to  saddle- 
bloeks  with  screws  or  bolts. 


APPENDIX   D.  617 

The  ends  of  longitudinal  running-board  shall  be  not  less 
than  six  (6)  nor  more  than  ten  (10)  inches  from  a  vertical 
plane  parallel  with  end  of  car  and  passing  through  the  inside 
face  of  knuckle  when  closed  with  coupler-horn  against  the 
buffer-block  or  end-sill;  and  if  more  than  four  (4)  inches  from 
edge  of  roof  of  car,  shall  be  securely  supported  their  full  width 
by  substantial  metal  braces. 

Running-boards  shall  be  made  of  wood  and  securely  fastened 
to  car. 

Sill-steps. 

Number:  Four  (4). 

Dimensions:  Minimum  cross-sectional  area  one-half  (i/^) 
by  one  and  one-half  (1|4)  inches,  or  equivalent,  of  wrought 
iron  or  steel. 

^Minimum  length  of  tread,  ten  (10),  preferably  twelve  (12) 
inches. 

Minimum  clear  depth,  eight  (8)  inches. 

Location:  One  (1)  near  each  end  on  each  side  of  car,  so 
that  there  shall  be  not  more  than  eighteen  (18)  inches  from 
end  of  car  to  center  of  tread  of  sill-step. 

Outside  edge  of  tread  of  step  shall  be  not  more  than  four 
(4)  inches  inside  of  face  of  side  of  car,  preferably  flush  -with 
side  of  car. 

Tread  shall  be  not  more  than  twenty-four  (24),  preferably 
not  more  than  twenty-two  (22)    inches  above  the  top  of  rail. 

]\Ianner  of  Application  :  Sill-steps  exceeding  twenty-one 
(21)  inches  in  depth  shall  have  an  additional  tread. 

Sill-steps  shall  be  securely  fastened  with  not  less  than  one- 
half  (i/o)  inch  bolts  with  nuts  outside  (when  possible)  and 
riveted  over,  or  with  not  less  than  one-half  (^)  inch  rivets. 

Ladders. 

Number:  Four  (4), 

Dimensions:  ^linimura  clear  length  of  tread:  Side  ladders 
sixteen  (16)  inches;  end  ladders  fourteen  (14)  inches. 


618  FEDERAL   EMPLOYERS'    SAPETY    APPLIANCE    ACT. 

Maximum  spacing  between  ladder-treads,  nineteen  (19) 
inches. 

Top  ladder-tread  shall  be  located  not  less  than  twelve  (12) 
nor  more  than  eighteen  (18)  inches  from  roof  at  eaves. 

Spacing  of  side  ladder  treads  shall  be  uniform  within  a  limit 
of  two  (2)  inches  from  top  ladder  tread  to  bottom  tread  of 
ladder. 

Maximum  distance  from  bottom  tread  of  side  ladder  to  top 
tread  of  sill-step,  twenty-one  (21)  inches. 

End  ladder  treads  shall  be  spaced  to  coincide  with  treads 
of  side  ladders,  a  variation  of  two  (2)  inches  being  allowed. 
Where  construction  of  car  will  not  permit  the  application  of  a 
tread  of  end  ladder  to  coincide  with  bottom  tread  of  side 
ladder,  the  bottom  tread  of  end  ladder  must  coincide  with 
second  tread  from  bottom  of  side  ladder. 

Hard-wood  treads,  minimum  dimensions  one  and  one-half 
(11/^)  by  two  (2)  inches. 

Iron  or  steel  treads,  minimum  diameter  five-eighths  (%)  of 
an  inch. 

IMinimum  clearance  of  treads,  two  (2),  preferably  two  and 
one-half  (2iA)    inches. 

Location:  One  (1)  on  each  side,  not  more  than  eight  (8) 
inches  from  right  end  of  car;  one  (1)  on  each  end,  not  more 
than  eight  (8)  inches  from  left  side  of  ear;  measured  from 
inside  edge  of  ladder-stile  or  clearance  of  ladder  treads  to 
corner  of  car. 

Manner  of  Application  :  ]\Ietal  ladders  without  stiles  near 
corners  of  cars  shall  have  foot  guards  or  upward  projections 
not  less  than  two  (2)  inches  in  height  near  inside  end  of 
bottom  treads. 

Stiles  of  ladders,  projecting  two  (2)  or  more  inches  from 
face  of  car,  will  serve  as  foot-guards. 

Ladders  shall  be  securely  fastened  "with  not  less  than  one- 
half  (i/o)  inch  bolts  with  nuts  outside  (when  possible)  and 
riveted  over,  or  witli  not  less  than  one-half  (I/2)  inch  rivets. 
Tfiree-eighths  (%)  inch  bolts  may  be  used  for  wooden  treads 
which  are  gained  into  stiles. 


APPENDIX   D. 


End-ladder  Clearance. 


619' 


No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake- 
wheel  or  uncoupling-lever  shall  extend  to  within  twelve  (12) 
inches  of  a  vertical  plane  parallel  with  end  of  car  and  pass- 
ing through  the  inside  face  of  knuckle  when  closed  witli 
coupler-horn  against  the  buft'er-block  or  end-sill,  aud  no 
other  part  of  end  of  car  or  fixtures  on  same  abovj  end-sills, 
other  than  exceptions  herein  noted,  shall  extend  beyond  tlie 
outer  face  of  buffer-block. 

Side-handholds. 

Number:   One  (1)  over  each  ladder. 

One  (1)  right  angle  handhold  may  take  the  place  of  two 
(2)  adjacent  specified  roof -handholds,  provided  the  dimen- 
sions and  locations  coincide,  and  that  an  extra  leg  is  securely 
fastened  to  car  at  point  of  angle. 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  sixteen  (16)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/0)    inches. 

Location:  On  roof  of  car:  One  (1)  parallel  to  treads  of 
each  ladder,  not  less  than  eight  (8)  nor  more  than  fifteen  (15) 
inches  from  edge  of  roof,  except  on  refrigerator  cars  where 
ice  hatches  prevent,  when  location  may  be  nearer  edge  of  roof. 

Manner  of  Application  :  Roof-handholds  shall  be  securely 
fastened  with  not  less  than  one-half  (I/2)  inch  bolts  with  nuts 
outside  (when  possible)  and  riveted  over,  or  with  not  less 
than  one-half  (i/o)  inch  rivets. 

Side-hand-piolds. 

Number:    Four  (4). 

[Tread  of  side-ladder  is  a  side-handhold.] 
Dimensions:    Minimum  diameter,  five-eighths   (%)   of  an 
inch,  M^rought  iron  or  steel. 


620 


FEDERAL   EMPLOYERS     SAFETY    ArPLLA.NCE    ACT. 


^Minimum  clear  length,  sixteen  (16)  inches,  preferably 
twenty-four  (24)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Location:  Horizontal:  One  (1)  near  each  end  on  each 
side  of  car. 

Side-handholds  shall  be  not  less  than  twenty-four  (24)  nor 
more  than  thirty  (30)  inches  above  center  line  of  coupler, 
except  as  provided  above,  where  tread  of  ladder  is  a  handhold. 
Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
eight  (8)  inches  from  end  of  car. 

Manner  op  Application  :  Side-handholds  shall  be  securely 
fastened  with  not  less  than  one-half  (%)  inch  bolts  with  nuts 
outside  (when  possible)  and  riveted  over,  or  with  not  less 
than  one-half  {Vo)  inch  rivets. 

Horizontal  End-handholds. 

Number:  Eight  (8)  or  more.  [Four  (4)  on  each  end  of 
car.] 

[Tread  of  end-ladder  is  an  end-handhold.] 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

jMinimum  clear  length,  sixteen  (16)  inches,  preferably 
twenty-four  (24)  inches. 

A  liandhold  fourteen  (14)  inches  in  length  may  be  used 
where  it  is  impossible  to  use  one  sixteen  (16)  inches  in  length. 

]\Iinimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Location:  One  (1)  near  each  side  on  each  end  of  car,  not 
less  than  twenty-four  (24)  nor  more  than  thirty  (30)  inches 
above  center  line  of  coupler,  except  as  provided  above,  when 
tread  of  end-ladder  is  an  end-handhold.  Clearance  of  outer 
end  of  handhohl  shall  be  not  more  than  eight  (8)  inches  from 
side  of  car. 

One  (1)  near  each  side  of  each  end  of  car  on  face  of  end-sill 
or  sheathing  over  end-sill,  projecting  outward  or  do^vnward. 


APPENDIX    D.  621 

Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
sixteen  (16)  inches  from  side  of  car. 

One  each  end  of  cars  with  platform  end-sills  six  (6)  or  more 
inches  in  width,  measured  from  end-post  or  siding  and  ex- 
tending entirely  across  end  of  car,  there  shall  be  one  addi- 
tional end-handhold  not  less  than  twenty-four  (24)  inches  in 
length,  located  near  center  of  car,  not  less  than  thirty  (30) 
nor  more  than  sixty  (60)  inches  above  platform  end-sill. 

Manner  of  Application  :  Plorizontal  end-handholds  shall 
be  securely  fastened  with  not  less  than  one-half  (I/2)  inch 
bolts  wath  nuts  outside  (when  possible)  and  riveted  over,  or 
with  not  less  than  one-half  (I/2)  i^ich  rivets. 

Vertical  End-handholds. 

Number:  Two  (2)  on  full-wadth  platform  end-sill  cars, 
as  heretofore  described. 

Dimensions:  Minimum  diameter  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  eighteen  (18),  preferably  twenty- 
four  (24)    inches. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(2V2)    inches. 

Location:  One  (1)  on  each  end  of  car  opposite  ladder,  not 
more  than  eight  (8)  inches  from  side  of  car;  clearance  of 
bottom  end  of  handhold  shall  be  not  less  than  twenty-four  (24) 
nor  more  than  thirty  (80)  inches  above  center  line  of  coupler. 

Manner  of  Application:  Vertical  end-handholds  shall  be 
securely  fastened  with  not  less  than  one-half  (i/o)  inch  bolts 
with  nuts  outside  (when  possible)  and  riveted  over,  or  with 
not  less  than  one-half  ("^,'2)  inch  rivets. 

Uncoupling-levers. 

Number:  Two  (2). 

Uncoupling-levers  may  be  either  single  cr  double,  and  of 
any  efficient  design. 


622  FEDERAL   EMPLOYERS'    SAFETY    APPLIANCE    ACT. 

Dimensions  :  Handles  of  uncoupling-levers,  except  those 
shown  on  Plate  B  or  of  similar  designs,  shall  be  not  more  than 
six  (6)  inches  from  sides  of  ear. 

Uncoupling-levers  of  design  shown  on  Plate  B  and  of 
similar  designs  shall  conform  to  the  following-prescribed 
limits : 

Handles  shall  be  not  more  than  twelve  (12),  preferably 
nine  (9)  inches  from  sides  of  cars.  Center  lift-arms  shall  be 
not  less  than  seven  (7)  inches  long. 

Center  of  eye  at  end  of  center  lift-arm  shall  be  not  more 
than  three  and  one-half  (Si/o)  inches  beyond  center  of  eye 
of  iineoupling-pin  of  coupler  when  horn  of  coupler  is  against 
the  buffer-block  or  end-sill.     (See  Plate  B.) 

Ends  of  handles  shall  extend  not  less  than  four  (4)  inches 
below  bottom  of  end-sill  or  shall  be  so  constructed  as  to  give 
a  minimum  clearance  of  two  (2)  inches  around  handle, 
]\Iinimum  drop  of  handles  shall  be  twelve  (12)  inches;  maxi- 
mum, fifteen  (15)  inches  over  all.     (See  Plate  B.) 

Handles  of  uncoupling-levers  of  the  "rocking"  or  "push- 
doA\Ti"  type  shall  be  not  less  than  eighteen  (18)  inches  from 
top  of  rail  when  lock-block  has  released  knuckle,  and  a  suitable 
stop  shall  be  provided  to  prevent  inside  arm  from  flying  up 
in  case  of  breakage. 

Location:   One  (1)  on  each  end  of  car. 

When  single  lever  is  used  it  shall  be  placed  on  left  side  of 
end  of  car. 

HOPPER  CARS  AND  HIGH-SIDE   GONDOLAS   WITH 
FIXED  ENDS. 

[Cars  with  sides  more  than  thirty-six  (36)  inches  above  the 
fioor  are  high-side  cars.] 

Hand-brakes. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars.'* 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars." 


APPENDIX    D.  623 

Location  :  Each  hand-brake  shall  be  so  located  that  it 
can  be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car  to  the  left  of, 
and  not  more  than  twenty-two  (22)  inches  from,  center. 

Manner  op  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cai*s." 

Brake-step. 
Same  as  specified  for  "Box  and  other  house  ears." 

SlIiL-STEPS. 

Same  as  specified  for  "Box  and  other  house  cars." 

L.IDDERS. 

Number  :  Same  as  specified  for  ' '  Box  and  other  house  cars. '  * 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
ears,"  except  that  top-ladder  tread  shall  be  located  not  more 
than  four  (4)  inches  from  top  of  car. 

Location  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Side-handholds. 
Same  as  specified  for  "Box  and  other  house  cars." 

Horizontal  End-handholds. 
Same  as  specified  for  "Box  and  other  house  cars." 

Vertical  End-handholds. 
Same  as  specified  for  "Box  and  other  house  ears." 

Uncoupling-levers. 
Same  as  specified  for  "Box  and  other  house  cars." 

End-ladder  Clearance. 

No  part  of  car  above  end -sills  within  thirty  (30)  inches 
from   side   of   car,    except   buffer-block,    brake-shaft,    brake- 


624  FEDERAL   EMPLOYERS'    SAFETY    APPLIANCE   ACT. 

wheel,  brake-step  or  uncoupling  lever  shall  extend  to  within 
twelve  (12)  inches  of  a  vertical  plane  parallel  with  end  of 
car  and  passing  through  the  inside  face  of  knuckle  when 
closed  with  coupler-horn  against  the  buffer-block  or  end- 
sill,  and  no  other  part  of  end  of  car  or  fixtures  on  same 
above  end-sills,  other  than  exceptions  herein  noted,  shall 
extend  beyond  the  outer  face  of  buffer-block. 

DROP-END  HIGH-SIDE   GONDOLA   CARS. 
Hand-brakes. 

Number  :  Same  as  specified  for  ' '  Box  and  other  house  cars.  *' 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car  to  the  left 
of  center. 

Manner  of  Application:  Same  as  specified  for  "Box  and 
other  house  cars." 

Sill-steps. 
Same  as  specified  for  "Box  and  other  house  cars." 

Ladders. 

Number:    Two  (2). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars,"  except  that  top-ladder  tread  shall  be  located  not  more 
than  four  (4)  inches  from  top  of  car. 

Location:  One  (1)  on  each  side,  not  more  than  eight  (8) 
inches  from  right  end  of  car,  measured  from  inside  edge  of 
ladder-stile  or  clearance  of  ladder-treads  to  corner  of  car. 

Manner  of  Application:  Same  as  specified  for  "Box  and 
other  house  cars." 

SiDE-IIANDllOLDS. 

Same  as  specified  for  "Box  and  other  house  cars." 


APPENDIX    D. 


625 


Horizontal  End-handholds. 

Number:   Four  (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
ears. ' ' 

Location:  One  (1)  near  each  side  of  eaeli  end  of  car  on 
face  of  end-sill.  Clearance  of  outer  end  of  handhold  shall  be 
not  more  than  sixteen  (16)  inches  from  side  of  car. 

Manner  of  Application:  Same  as  specified  for  "Box  and 
other  house  cars." 

IIncoupling-levers. 
Same  as  specified  for  "Box  and  other  house  cars." 

End-ladder  Clearance. 

No  part  of  ear  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake- 
wheel  or  uncoupling-lever  shall  extend  to  within  twelve  (12) 
inches  of  a  vertical  plane  parallel  with  end  of  car  and  pass- 
ing through  the  inside  face  of  knuckle  when  closed  with 
coupler-horn  against  the  buffer-block  or  end-sill,  and  no 
other  part  of  end  of  car  or  fixtures  on  same  above  end-sills, 
other  than  exceptions  herein  noted,  shall  extend  beyond  the 
outer  face  of  buffer-block. 

FIXED-END    LOW-SIDE    GONDOLA    AND    LOW-SIDE 
HOPPER  CARS. 

[Cars  with  sides  thirty-six  {36)  inches  or  less  above  the 
floor  are  low-side  cars.] 

Hand-brakes. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 


626  FEDERAL   EMPLOYERS'    SAPETY    APPLIANCE    ACT. 

The  brake-shaft  shall  be  located  on  end  of  car,  to  the  left 
of  and  not  more  than  twenty-two  (22)  inches  from  center. 

Manner  op  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Brake-step. 
Same  as  specified  for  "Box  and  other  house  cars." 

SiLL-STEPS. 

Same  as  specified  for  ' '  Box  and  other  house  cars. ' ' 

SlDE-HANDHOI>DS. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars." 

Location:  Horizontal:  One  (1)  near  each  end  on  each  side 
of  car,  not  less  than  twenty-four  (24)  nor  more  than  thirty 
(30)  inches  above  center  line  of  coupler,  if  car  construction 
will  permit,  but  handhold  shall  not  project  above  top  of  side. 
Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
eight  (8)  inches  from  end  of  car. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Horizontal  End-handholds. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars." 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  One  (1)  near  each  side  on  each  end  of  car  not 
less  than  twenty-four  (24)  nor  more  than  thirty  (30)  inches 
above  center  line  of  coupler,  if  car  construction  will  permit. 
Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
eight  (8)  inches  from  side  of  car. 

One  (1 )  near  each  side  of  caeli  end  of  car  on  face  of  end-sill, 
projecting  outward  or  downward.     Clearance  of  outer  end  of 


APPENDIX   D. 


627 


handhold  shall  bo  not  more  than  sixteen  (16)  inches  from  side 
of  ear. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Uncoupling-levers. 
Same  as  specified  for  "Box  and  other  house  cars." 

End-ladder   Clearance. 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  bufii'er-block,  brake-shaft,  brake-step, 
brake-wheel  or  uncoupling-lever  shall  extend  to  within  twelve 
(12)  inches  of  a  vertical  plane  parallel  with  end  of  car  and 
passing  through  the  inside  face  of  knuckle  when  closed  with 
coupler-horn  against  the  buffer-block  or  end-sill,  and  no  other 
part  of  end  of  car  or  fixtures  on  same  above  end-sills,  other 
than  exceptions  herein  noted,  shall  extend  beyond  the  outer 
face  of  buffer-block. 

DROP-END  LOW-SIDE  GONDOLA  CARS. 

Hand-brakes. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars." 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car  to  the  left 
of  center. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars,"  provided  that  top  brake-shaft  support  may 
be  omitted. 

Sill-steps. 
Same  as  specified  for  "Box  and  other  house  cars." 


628  federal  employers'  safety  appliance  act, 

Side-handholds. 

Number  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars." 

Location:  Horizontal:  One  (1)  near  each  end  on  each  side 
of  car,  not  less  than  twenty-four  (24)  nor  more  than  thirty 
(30)  inches  above  center  line  of  coupler,  if  car  construction 
will  permit,  but  handhold  shall  not  project  above  top  of  side. 
Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
eight  (8)  inches  from  end  of  car. 

]\Ianner  of  Application:  Same  as  specified  for  "Box  and 
other  house  cars." 

End-handholds. 

Number:    Four  (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars." 

Location  :  Horizontal :  One  ( 1 )  near  each  side  of  each  end 
of  car  on  face  of  end-sill.  Clearance  of  outer  end  of  handhold 
shall  be  not  more  than  sixteen  (16)  inches  from  side  of  car. 

I\L4.NNER  OF  Application  :  Same  as  specified  for  * '  Box  and 
other  house  cars." 

Uncoupling-levebs. 

Same  as  specified  for  "Box  and  other  house  cars." 

End-ladder  Clearance. 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake-wheel, 
or  uncoupling-lever  shall  extend  to  within  twelve  (12)  inches 
of  a  vertical  plane  parallel  with  end  of  car  and  passing 
through  the  insid(?  face  of  knuckle  Avhen  closed  with  coupler- 
horn  against  the  bnffer-l)lock  or  end-sill,  and  no  other  part 
of  end  of  car  or  fixtures  on  same  above  end-sills,  other  than 
exceptions  herein  noted,  shall  extend  beyond  the  outer  face 
of  buffer-block. 


APPENDIX    D.  629 

FLAT  CARS. 

[Cars  with  sides  twelve  (12)  inches  or  less  above  the  floor 
may  be  equipped  the  same  as  flat  cars.] 

Hand-brakes. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location  :  Each  liand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  the  end  of  car  to  the 
left  of  center,  or  on  side  of  ear  not  more  than  thirty-six  (36) 
inches  from  right-hand  end  thereof. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Sill-steps. 
Same  as  specified  for  "Box  and  other  house  cars." 

Side-handholds. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  on  face  of  each  side-sill 
near  each  end.  Clearance  of  outer  end  of  handhold  shall  be 
not  more  than  twelve  (12)  inches  from  end  of  car. 

Manner  of  Application  :  Same  as  specified  for  * '  Box  and 
other  house  cars." 

End  Handholds. 

Number:    Four  (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars." 

Location:  Horizontal:  One  (1)  near  each  side  of  each  end 
of  car  on  face  of  end-sill.  Clearance  of  outer  end  of  handhold 
shall  be  not  more  than  sixteen  (16)  inches  from  side  of  car. 


630  FEDERAL   EMPLOYERS'    SAFETY   APPLLiNCE    ACT, 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Uncoupling-levers. 
Same  as  specified  for  "Box  and  other  house  cars." 

TANK  CARS  WITH  SIDE-PLATFORMS. 

Hand-brakes. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car  to  the  left 
of  center. 

Manner  of  Application  :  Same  as  specified  for  ' ' Box  and 
other  house  cars." 

Sill  Steps. 
Same  as  specified  for  "Box  and  other  house  cars." 

Side-handholds. 

Number:   Four  (4)  or  more. 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  on  face  of  each  side-sill 
near  each  end.  Clearance  of  outer  end  of  handhold  shall  be 
not  more  than  twelve  (12)  inches  from  end  of  ear. 

If  side  safety-railings  are  attached  to  tank  or  tank  bands, 
four  (4)  additional  vertical  handholds  shall  be  applied,  one 
(1)  as  nearly  as  possible  over  each  sill-step  and  securely 
fastened  to  tank  or  tank  band. 

^Tanner  of  Application:  Same  as  specified  for  "Box  and 
other  house  cars." 


appendix  d.  631 

End-handholds. 

Number:   Four  (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  side  of  each  end 
of  car  on  face  of  end-sill.  Clearance  of  outer  end  of  handhold 
shall  be  not  more  than  sixteen  (16)  inches  from  side  of  car. 

^Manner  op  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Tank-head  Handholds. 

Number:  Two  (2).  [Not  required  if  safety -railing  runs 
around  ends  of  tank.] 

Dimensions:  Minimum  diameter  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel.  Minimum  clearance  two  (2), 
preferably  two  and  one-half  (21/0)  inches.  Clear  length  of 
handholds  shall  extend  to  within  six  (6)  inches  of  outer 
diameter  of  tank  at  point  of  application. 

Location:  Horizontal:  One  (1)  across  each  head  of  tank 
not  less  than  thirty  (30)  nor  more  than  sixty  (60)  inches 
above  platform. 

]\Ianner  of  Application:  Tank-head  handholds  shall  be 
securely  fastened. 

Safety-railings. 

Number:  One  (1)  continuous  safety-railing  running  arounci 
sides  and  ends  of  tank,  securely  fastened  to  tank  or  tank 
bands  at  ends  and  sides  of  tank;  or  two  (2)  running  full 
length  of  tank  at  sides  of  car  supported  by  posts. 

Dimensions:  Not  less  than  three-fourths  (%)  of  an  inch, 
iron. 

Location  :  Running  full  length  of  tank  either  at  side  sup- 
ported by  posts  or  securely  fastened  to  tank  or  tank  bands, 
not  less  than  thirty  (30)  nor  more  than  sixty  (60)  inches 
above  platform. 

Manner  op  Application  :  Safety-railings  shall  be  securely 
fastened  to  tank  body,  tank  bands  or  posts. 


632  federal  employers'  safety  appliance  act. 

Uncoupling-levers. 

Same  as  specified  for  "Box  and  other  house  ears." 

End-ladder  Clearance. 

No  part  of  ear  above  end-sills  ^\'ithin  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft  brackets, 
brake-wheel  or  uncoupling-lever  shall  extend  to  within 
twelve  (12)  inches  of  a  vertical  plane  parallel  with  end  of 
car  and  passing  through  the  inside  face  of  knuckle  when 
closed  with  coupler-horn  against  the  buffer-block  or  end- 
sill,  and  no  other  part  of  end  of  car  or  fixtures  on  same 
above  end-sills,  other  than  exceptions  herein  noted,  shall 
extend  beyond  the  outer  face  of  buffer-block. 

TANK  CARS  WITHOUT  STDE-STLLS  AND  TANK  CARS 
WITH  SHORT  SIDE-SILLS  AND  END-PLATFORMS. 

Hand-brakes. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars." 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  shall  be  located  on  end  of  car  to  the  left 
of  center. 

^Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Running-boards. 

Number:  One  (1)  continuous  running-board  around  sides 
and  ends;  or  two  (2)  running  full  length  of  tank,  one  (1)  on 
each  side. 

Dimensions:    "Minimum  width  on  sides,  ten  (10)  inches. 

jMinimum  width  on  ends,  six  (6)  inches. 


APPENDIX   D.  633 

Location  :  Continuous  aronnd  sides  and  ends  of  cars.  On 
tank  cars  having  end  platforms  extending  to  bolsters,  run- 
ning-boards shall  extend  from  center  to  center  of  bolsters,  one 
(1)  on  each  side. 

Manner  of  Application:  If  side  running-boards  are 
applied  below  center  of  tank,  outside  edge  of  running-boards 
shall  extend  not  less  than  seven  (7)  inches  beyond  bulge  of 
tank. 

The  running-boards  at  ends  of  car  shall  be  not  less  than 
six  (6)  inches  from  a  point  vertically  above  the  inside  face  of 
knuckle  when  closed  with  coupler-horn  against  the  buffer- 
block,  end-sill  or  back-stop. 

Running-boards  shall  be  securely  fastened  to  tank  or  tank 
handhold. 

Sill-steps. 

Number:  Same  as  specified  for  "Box  and  other  house 
ears." 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  One  (1)  near  each  end  on  each  side  under  side- 
handhold. 

Outside  edge  of  tread  of  step  shall  be  not  more  than  four 
(4)  inches  inside  of  face  of  side  of  car,  preferably  flush  with 
side  of  car. 

Tread  shall  be  not  more  than  twenty-four  (24),  preferably 
not  more  than  twenty-two  (22)    inches  above  the  top  of  rail. 

Manner  of  Application  :  Same  as  specified  for  * '  Box  and 
other  house  cars." 

Ladders. 

[//  running-hoards  are  so  located  as  to  make  ladders 
necessary.] 

Number:  Two  (2)  on  cars  with  continuous  running, 
boards. 

Four  (4)  on  cars  with  side  running-boards. 

Dimensions:  Minimum  clear  length  of  tread,  ten  (10) 
inches. 


634  FEDERAL    EMPLOYERS'    SAEETY    APPLIANCE    ACT. 

Maximum  spacing  of  treads,  nineteen  (19)  inches. 

Hard-wood  treads,  minimum  dimensions,  one  and  one-half 
(li/o)  by  two  (2)  inches. 

Wrought  iron  or  steel  treads,  minimum  diameter,  tive- 
eighths  (%)  of  an  inch. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Location  :  On  cars  with  continuous  running-boards,  one 
(1)  at  right  end  of  each  side. 

On  cars  with  side  running-boards,  one  (1)  at  each  end  of 
each  running-board. 

Manner  of  Application:  Ladders  shall  be  securely 
fastened  with  not  less  than  one-half  (Vo)  inch  bolts  or  rivets. 

SlOE-HANDIIOLDS. 

Number:   Four  (4)  or  more. 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars." 

Location:  Horizontal:  One  (])  on  face  of  each  side-sill 
near  each  end  on  tank  cars  Math  short  side-sills,  or  one  (1) 
attached  to  top  of  running-board  projecting  outward  above 
sill-steps  or  ladders  on  tank  ears  without  side-sills.  Clearance 
of  outer  end  of  handhold  shall  be  not  more  than  twelve  (12) 
inches  from  end  of  car. 

If  side  safety-railings  are  attached  to  tank  or  tank  bands 
four  (4)  additional  vertical  handholds  shall  be  applied,  one 
(1)  as  nearly  as  possible  over  each  sill-step  and  securely 
fastened  to  tank  or  tank  band. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

End-handholds. 

NiTMBER:    Four  (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars." 

Location:  Horizontal:  One  (1)  near  each  side  of  each  end 
of  car  on  face  of  end-sill.     Clearance  of  outer  end  of  hand- 


APPENDIX   D. 


635 


hold  shall  be  not  more  than  sixteen  (IG)  inches  from  side  of 
car. 

Manner  of  Application  :  Same  as  specified  for  '  *  Box  and 
other  house  ears." 

Tank-head  Handholds. 

Number:  Two  (2).  [Not  required  if  safety -railing  runs 
around  ends  of  tank.] 

Dimensions:  Minimum  diameter  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(21/2)  inches. 

Location:  Horizontal:  One  (1)  across  each  head  of  tank 
not  less  than  thirty  (30)  nor  more  than  sixty  (60)  inches 
above  platform  on  running-board.  Clear  length  of  hand- 
holds shall  extend  to  within  six  (6)  inches  of  outer  diameter 
of  tank  at  point  of  application. 

Manner  of  Application:  Tank-head  handholds  shall  be 
securely  fastened. 

Safety-railings. 

Number:  One  (1)  running  around  sides  and  ends  of  tank 
or  two  (2)  running  full  length  of  tank. 

Dimensions:  Minimum  diameter,  seven-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance,  two  and  one-half   (21/2)   inches. 

Location  :  Running  full  length  of  tank,  not  less  than  thirty 
(30)  nor  more  than  sixty  (60)  inches  above  platform  or 
running-board. 

Manner  of  Application  :  Safety-railings  shall  be  securely 
fastened  to  tank  or  tank-bands  and  secured  against  end 
shifting. 

Uncoupling-levers. 

Same  as  specified  for  "Box  and  other  house  cars." 
End-ladder  CiiEARANCE. 

No  part  of  car  above  end-sills  -vvnthin  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake-shaft 


636  FEDERAL   EMPLOYERS'    SAFETY    APPLIANCE    ACT. 

brackets,  brake-wheel,  running-boards  or  uncoupling-lever 
shall  extend  to  within  twelve  (12)  inches  of  a  vertical  plane 
parallel  with  end  of  car  and  passing  through  the  inside  face 
of  knuckle  when  closed  with  coupler-horn  against  the  buffer- 
block  or  end-sill,  and  no  other  part  of  end  of  car  or  fixtures 
on  same,  above  end-sills,  other  than  exceptions  herein  noted, 
shall  extend  beyond  the  outer  face  of  buffer-block. 

TANK  CARS  WITHOUT  END-SILLS. 

Hand-brakes. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars." 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
ears. ' ' 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion.  The  brake-shaft 
shall  be  located  on  end  of  car  to  the  left  of  center. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Brake-step. 
Same  as  specified  for  "Box  and  other  house  cars." 

Running-boards. 

Number:    One  (1). 

Dimensions:    Minimum  width  on  sides,  ten    (10)    inches. 

Minimum  width  on  ends,  six   (6)  inches. 

Location  :    Continuous  around  sides  and  ends  of  tank. 

Manner  of  Application:  If  running-boards  are  applied 
below  center  of  tank,  outside  edge  of  running-boards  shall 
extend  not  less  than  seven  (7)  inches  beyond  bulge  of  tank. 

Running-boards  at  ends  of  car  shall  be  not  less  than  six 
(fi)  inches  from  a  point  vertically  above  the  inside  face  of 
knuckle  when  closed  with  coupler-horn  against  the  buffer- 
block,  end-sill  or  baelc-stop. 

Running-boards  shall  be  securely  fastened  to  tank  or  tank 
bands. 


appendix  d.  637 

Sill-steps. 

Number:  Four  (4).  [//  tank  has  high  running-boards, 
making  ladders  necessary,  sill-steps  must  meet  ladder  re- 
quirements.] 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  One  (1)  near  each  end  on  each  side,  flush  with 
outside  edge  of  running-board  as  near  end  of  car  as  prac- 
ticable. 

Tread  not  more  than  twenty-four  (24),  preferably  not 
more  than  twenty-two  (22)  inches  above  the  top  of  rail. 

Manner  of  Application:  Steps  exceeding  eighteen  (18) 
inches  in  depth  shall  have  an  additional  tread  and  be  laterally 
braced. 

Sill-steps  shall  be  securely  fastened  with  not  less  than  one- 
half  (1/^)  inch  bolts  with  nuts  outside  (when  possible)  and 
riveted  over,  or  with  one-half  (i/o)  inch  rivets. 

Side-handholds. 

Number:   Four  (4)  or  more. 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars." 

Location:  Horizontal:  One  (1)  near  each  end  on  each 
side  of  car  over  sill-step,  on  running-board,  not  more  than 
two  (2)  inches  back  from  outside  edge  of  running-board,  pro- 
jecting downward  or  outward. 

Where  such  side-handholds  are  more  than  eighteen  (18) 
inches  from  end  of  car,  an  additional  handhold  must  be 
placed  near  each  end  on  each  side  not  more  than  thirty  (30) 
inches  above  center  line  of  coupler. 

Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
twelve  (12)  inches  from  end  of  car. 

If  safety-railings  are  on  tank,  four  (4)  additional  vertical 
handholds  shall  be  applied,  one  (1)  over  each  sill-step  on 
tank. 

l\LvNNER  OP  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 


638  federal  employers'  safety  appliance  act. 

End-handholds. 

Number:  Four  (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  side  on  each 
end  of  car  on  running-board,  not  more  than  two  (2)  inches 
back  from  edge  of  running-board  projecting  doA\Tiward  or 
outward,  or  on  end  of  tank  not  more  than  thirty  (30)  inches 
above  center  line  of  coupler. 

Manner  of  Application:  Same  as  specified  for  "Box  and 
other  house  cars." 

Safety-raiijngs. 

Number:    One  (1). 

Dimensions:  Minimum  diameter  seven-eighths  {%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance  two  and  one-half  (2I/2)  inches. 

Location  :  Safety-railings  shall  be  continuous  around  sides 
and  ends  of  car,  not  less  than  thirty  (30)  nor  more  than  sixty 
(60)    inches  above  running-board. 

Manner  of  Application  :  Safety-railings  shall  be  securely 
fastened  to  tank  or  tank  bands,  and  secured  against  end 
shifting. 

Uncoupijng-levers. 

Number:  Same  as  specified  for  "Box  and  otlier  house 
cars. ' ' 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
ears,"  except  that  minimum  length  of  uncoupling-lever  shall 
be  forty-two  (42)  inches,  measured  from  center  line  of  end 
of  car  to  handle  of  lever. 

Location  :  Same  as  specified  for  ' '  Box  and  other  house 
cars,"  except  that  uncoupling-lever  shall  be  not  more  than 
thirty   (30)   inches  above  center  line  of  coupler. 

End-ladder  Clearance. 

No  part  of  car  above  buffer-l)lock  within  thirty  (30) 
inches    from    side    of    car,    except,    brake-shaft,    brake-shaft 


APPENDIX    D.  639 

brackets,  brake-wheel  or  uncoupling-lever  shall  extend  to 
within  twelve  (12)  inches  of  a  vertical  plane  parallel  with 
end  of  car  and  passing  through  the  inside  face  of  knuckle 
when  closed  with  coupler-horn  against  the  buffer-block  or 
back-stop,  and  no  other  part  of  end  of  car  or  fixtures  on 
same,  above  buffer-block,  other  than  exceptions  herein  noted, 
shall  extend  beyond  the  face  of  buffer-block. 

CABOOSE  CARS  WITH  PLATFORMS. 
Hand-brakes. 

Number:  Each  caboose  car  shall  be  equipped  with  an  effi- 
cient hand-brake  which  shall  operate  in  harmony  with  the 
power-brake  thereon. 

The  hand-brake  may  be  of  any  efficient  design,  but  must 
provide  the  same  degree  of  safety  as  the  design  shown  on 
Plate  A. 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
ears." 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  on  caboose  cars  with  platforms  shall  be 
located  on  platform  to  the  left  of  center. 

]\Ianner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Running-boards. 

Number:    One  (1)  longitudinal  running-board. 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Full  length  of  car,  center  of  roof.  [On  caboose 
cars  with  cupolas,  longitudinal  running-hoards  shall  extend 
from  cupola  to  ends  of  roof.] 

Outside-metal-roof  cars  shall  have  latitudinal  extensions 
leading  to  ladder  locations. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 


640  federal  employers'  sapety  appllince  act. 

Ladders. 

Number:   Two  (2). 
Dimensions:    None  specified, 
Location:    One  (1)  on  each  end. 

]\Ianner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Roof-handholds. 

Number:    One  (1)  over  each  ladder. 

Where  stiles  of  ladders  extend  twelve  (12)  inches  or  more 
above  roof,  no  other  roof-handholds  are  required. 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  On  roof  of  caboose,  in  line  with  and  running 
parallel  to  treads  of  ladder,  not  less  that  eight  (8)  nor  more 
than  fifteen  (15)  inches  from  edge  of  roof. 

Manner  of  Application:  Same  as  specified  for  "Box  and 
other  house  cars." 

Cupola-handholds. 

Number:    One  (1)  or  more. 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

IMinimum  clearance  two  (2),  preferably  two  and  one-half 
(21^)    inches. 

Location  :  One  ( 1 )  continuous  handhold  extending  around 
top  of  cupola  not  more  than  three  (3)  inches  from  edge  of 
cupola-roof. 

Four  (4)  right-angle  handholds,  one  (1)  at  each  comer, 
not  less  than  sixteen  (16^  inches  in  clear  length  from  point 
of  angle,  may  take  the  place  of  the  one  (1)  continuous  hand- 
hold specified,  if  locations  coincide. 

Manner  of  Application  :  Cupola-handholds  shall  be  se- 
curely fastened  with  not  less  than  one-half  (1/2)  inch  bolts 
with  nuts  outside  and  riveted  over  or  with  not  less  than  one- 
half  (1/2)  iiK^h  rivets. 


appendix  d.  641 

Side-handholds. 

Number:    Four  (4). 

Dimensions:  ]\linimum  diameter,  five-eightlis  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  thirty-six  (36)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/^)    inches. 

Location:  One  (1)  near  each  end  on  each  side  of  car, 
curving  downward  toward  center  of  car  from  a  point  not 
less  than  thirty  (30)  inches  above  platform  to  a  point  not 
more  than  eight  (8)  inches  from  bottom  of  ear.  Top  end  of 
handhold  shall  be  not  more  than  eight  (8)  inches  from 
outside  face  of  end-sheathing. 

Manner  of  Application:  Same  as  specified  for  "Box  and 
other  house  cars." 

End-handholds. 

Number:    Four  (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars, ' ' 

Location  :  Horizontal :  One  ( 1 )  near  each  side  on  each  end 
of  car  on  face  of  platform  end-sill.  Clearance  of  outer  end 
of  handhold  shall  be  not  more  than  sixteen  (16)  inches  from 
end  of  platform  end-sill. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  ears." 

End-platform  Handholds. 

Number:    Four  (4). 

Dimensions  :  IMinimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(2i/2)i    inches. 

Location:  One  (1)  right-angle  handhold  on  each  side  of 
each  end  extending  horizontally  from  door-post  to  corner  of 
car  at  approximate  height  of  platform-rail,  then  downward 
to  within  twelve  (12)  inches  of  bottom  of  car. 


642  FEDERAL    EMPLOYERS'    SAFETY    APPLIANCE    ACT. 

.Manner  of  Application:  Handholds  shall  be  securely- 
fastened  with  bolts,  screws  or  rivets. 

Caboose  Platform-steps. 

Safe  and  suitable  box  steps  leading  to  caboose  platforms 
shall  be  provided  at  each  corner  of  caboose. 

Lov.-er  tread  of  step  shall  be  not  more  than  twenty-four 
(24)  inches  above  top  of  rail. 

Uncoupling-levers. 
Same  as  specified  for  "Box  and  other  house  cars." 

CABOOSE  CARS  WITHOUT  PLATFORMS. 
Hand-brakes. 

Number  :  Same  as  specified  for  ' '  Box  and  other  house 
cars." 

Dimensions:  Same  as  specified  for  **Box  and  other  house 
cars. ' ' 

Location:  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

The  brake-shaft  on  caboose  cars  without  platforms  shall  be 
located  on  end  of  car  to  the  left  of  center. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Brake-step. 

Same  as  specified  for  "Box  and  other  house  cars." 

Running-boards. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Full  length  of  car,  center  of  roof.  [On  caboose 
cars  with  cupolas,  longitudinal  running-hoards  shall  extend 
from  cupola  to  ends  of  roof.] 


APPENDIX    D. 


643 


Outside-metal-roof  ears  shall  have  latitudinal  extensions 
leading  to  ladder  locations. 

Manner  op  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars." 

Sill-steps. 

Same  as  specified  for  "Box  and  other  house  cars." 

Side-door  Steps. 

Number:    Two  (2)    [if  caboose  has  side-doors]. 

Dimensions:   Minimum  length,  five  (5)  feet. 

Minimum  width,  six  (6)  inches. 

Minimum  thickness  of  tread,  one  and  one-half  (li/^)  inches. 

]\Iinimum  height  of  back-stop,  three  (3)  inches. 

Minimum  height  from  top  of  rail  to  top  of  tread,  twenty- 
four  (24)  inches. 

Location:    One  (1)  under  each  side-door. 

Manner  of  Application:  Side-door  steps  shall  be  sup- 
ported by  two  (2)  iron  brackets  having  a  minimum  cross- 
sectional  area  seven-eighths  {%)  by  three  (3)  inches  or 
equivalent,  each  of  which  shall  be  securely  fastened  to  car 
by  not  less  than  two  (2)  three-fourth  (%)  inch  bolts. 

Ladders. 

Number:   Four  (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  Same  as  specified  for  "Box  and  other  house 
cars"  except  when  caboose  has  side  doors,  then  side-ladders 
shall  be  located  not  more  than  eight  (8)  inches  from  doors. 

Manner  of  Application  :  Same  as  specified  for  ' '  Box  and 
other  house  cars. ' ' 

End-l.u)der  Clearance. 

No  part  of  car  above  end-sills  within  thirty  (30)  inches 
from  side  of  car,  except  buffer-block,  brake-shaft,  brake- 
wheel,  brake-step,  running-board  or  uncoupling-lever  shall 
extend   to   within   twelve    (12)    inches   of   a   vertical   plane 


644 


FEDERAL   EMPLOYERS     SAFETY    APPLL\NCE   ACT, 


parallel  with  end  of  car  and  passing  through  the  inside 
face  of  knuckle  when  closed  with  coupler-hom  against  the 
buffer-block  or  end-sill,  and  no  other  part  of  end  of  car 
or  fixtures  on  same  above  end-sills,  other  than  exceptions 
herein  noted,  shall  extend  beyond  the  outer  face  of  buffer- 
block, 

RoOF-HANDHOLDS. 

Number:    Four   (4). 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Location:  One  (1)  over  each  ladder,  on  roof  in  line  with 
and  running  parallel  to  treads  of  ladder,  not  less  than  eight 
(8)  nor  more  than  fifteen  (15)  inches  from  edge  of  roof. 

Where  stiles  of  ladders  extend  twelve  (12)  inches  or  more 
above  roof,  no  other  roof -handholds  are  required. 

Manner  of  Application  :  Roof-handholds  shall  be  securely 
fastened  with  not  less  than  one-half  (1/2)  inch  bolts  with  nuts 
outside  (when  possible)  and  riveted  over,  or  with  not  less 
than  one-half  (^4)  inch  rivets. 

Cupola-handholds, 

Number:   One  (1)  or  more. 

Dimensions:  Minimum  diameter  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21^),  inches. 

Location:  One  (1)  continuous  cupola-handhold  extending 
around  top  of  cupola,  not  more  than  three  (3)  inches  from 
edge  of  cupola-roof. 

Four  (4)  right-angle  handholds,  one  (1)  at  each  corner, 
not  less  than  sixteen  (16)  inches  in  clear  length  from  point 
of  angle,  may  take  the  place  of  the  one  (1)  continuous  hand- 
hold specified,  if  locations  coincide. 

]\Ianner  of  Application  :  Cupola-handhold  shall  be  se- 
curely fastened  with  not  less  than  one-half  (l^)  inch  bolts 
with  nuts  outside  and  riveted  over  or  with  not  less  than 
on(!-half  XYo)  inch  rivets. 


appendix  d.  645 

Side-handholds. 

Number:   Four  (4), 

Dimensions  :  Same  as  specified  for  ' '  Box  and  other  house 
cars. ' ' 

Location:  Horizontal:  One  (1)  near  each  end  on  each  side 
of  car,  not  less  than  twenty- four  (24)  nor  more  than  thirty 
(30)  inches  above  center  line  of  coupler.  Clearance  of  outer 
end  of  handhold  shall  be  not  more  than  eight  (8)  inches  from 
end  of  car. 

Manner  of  Application:  Same  as  specified  for  **Box  and 
other  house  cars. ' ' 

Side-door  Handholds, 

Number:  Four  (4)  :  Two  (2)  curved,  two  (2)  straight. 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Location:  One  (1)  curs^ed  handhold,  from  a  point  at  side 
of  each  door  opposite  ladder,  not  less  than  thirty-six  (36) 
inches  above  bottom  of  car,  curving  away  from  door  down- 
ward to  a  point  not  more  than  six  (6)  inches  above  bottom 
of  car. 

One  (1)  vertical  handhold  at  ladder  side  of  each  door  from 
a  point  not  less  than  thirty-six  (36)  inches  above  bottom  of 
car  to  a  point  not  more  than  six  (6)  inches  above  level  of 
bottom  of  door. 

Manner  of  Application  :  Side-door  handholds  shall  be 
securely  fastened  with  not  less  than  one-half  (i/o)  inch  bolts 
with  nuts  outside  (when  possible)  and  riveted  over,  or  with 
not  less  than  one-half  (I/2)  iiich  rivets. 

Horizontal  End-hakdholds. 

Number:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 

Dimensions:  Same  as  specified  for  "Box  and  other  house 
cars. ' ' 


646  FEDERAL   EMPLOYERS'    SAFETY   APPLL\.NCE   ACT. 

Location:  Same  as  specified  for  ''Box  and  other  house 
cars,"  except  that  one  (1)  additional  end-handhold  shall  be 
on  each  end  of  cars  with  platform  end-sills  as  heretofore  de- 
scribed, unless  car  has  door  in  center  of  end.  Said  handhold 
shall  be  not  less  than  twenty-four  (24)  inches  in  length, 
located  near  center  of  car,  not  less  than  thirty  (30)  nor  more 
than  sixty  (60)  inches  above  platform  end-sill. 

Manner  of  Application  :  Same  as  specified  for  *  *  Box  and 
other  house  cars. ' ' 

Vertical  End-handholds. 
Same  as  specified  for  "Box  and  other  house  cars." 

Uncoupling-levers. 
Same  as  specified  for  "Box  and  other  house  cars." 

PASSENGER-TRAIN  CARS  WITH  WIDE  VESTIBULES. 
Hand-brakes. 

Number  :  Each  passenger-train  car  shall  be  equipped  with 
an  efficient  hand-brake,  which  shall  operate  in  harmony  with 
the  power-brake  thereon. 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

Side-handholds. 

Number:  Eight  (8). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  metal. 

Minimum  clear  length,  sixteen  (16)  inches. 

i\Iinimum  clearance,  one  and  one-fourth  (ll^),  preferably 
one  and  one-half  (IV2)    inches. 

Location:    Vertical:  One  (1)  on  oacli  vestibule  door-post. 

]\Ianner  of  Application  :  Sido-handholds  shall  be  securely 
fastened  with  bolts,  rivets  or  screws. 


appendix  d.  647 

End-handholds. 

Number:   Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  sixteen  (16)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Handholds  shall  be  flush  with  or  project  not  more  than  one 
(1)  inch  beyond  vestibule  face. 

Location  :  Horizontal :  One  near  each  side  on  each  end 
projecting  downward  from  face  of  vestibule  end-sill.  Clear- 
ance of  outer  end  of  handhold  shall  be  not  more  than  sixteen 
(16)  inches  from  side  of  car. 

Manner  of  Application  :  End-handholds  shall  be  securely 
fastened  with  bolts  or  rivets. 

When  marker-sockets  or  brackets  are  located  so  that  they 
cannot  be  conveniently  reached  from  platforms,  suitable  steps 
and  handholds  shall  be  provided  for  men  to  reach  such  sockets 
or  brackets. 

Uncoupling-levers. 

Uncoupling  attachments  shall  be  applied  so  they  can  be 
operated  by  a  person  standing  on  the  ground. 

Minimum  length  of  ground  uncoupling-attachment,  forty- 
two  (42)  inches,  measured  from  center  line  of  end  of  car  to 
handle  of  attachment. 

On  passenger-train  cars  used  in  freight  or  mixed-train 
service,  the  uncoupling  attachments  shall  be  so  applied  that 
the  coupler  can  be  operated  from  left  side  of  car. 

PASSENGER-TRAIN  CARS  WITH  OPEN  END- 
PLATFORMS. 

Hand-brakes. 
Number  :   Each  passenger-train  ear  shall  be  equipped  with 
an  efficient  hand-brake,  which  shall  operate  in  harmony  with 
the  power-brake  thereon. 


648  FEDERAL   EMPLOYERS*   SAFETY  APPLIANCE   ACT. 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

E  ND-H  ANDHOLDS. 

Number:   Four  (4). 

Dimensions:  j\Iinimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

IMinimum  clear  length,  sixteen   (16)   inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/^),  inches. 

Handholds  shall  be  flush  with  or  project  not  more  than 
one  (1)  inch  beyond  face  of  end-sill. 

Location:  Horizontal:  One  (1)  near  each  side  of  each  end 
on  face  of  platform  end-sill,  projecting  downward.  Clear- 
ance of  outer  end  of  handhold  shall  be  not  more  than  sixteen 
(16)  inches  from  end  of  end-sill. 

Manner  of  Application  :  End-handholds  shall  be  securely 
fastened  with  bolts  or  rivets. 

E  ND-H  ANDHOLDS. 

Number:  Four  (4).  [Cans  equipped  with  safety-gates  do 
not  require  end-platform  handholds.] 

Dimensions:  Minimum  clearance  two  (2),  preferably  two 
and  one-half  (2i/o)    inches   metal. 

Location  :  Horizontal  from  or  near  door-post  to  a  point 
not  more  than  twelve  (12)  inches  from  corner  of  car,  then 
approximately  vertical  to  a  point  not  more  than  six  (6)  inches 
from  top  of  platform.  Horizontal  portion  shall  be  not  less 
than  twenty-four  (24)  inches  in  length  nor  more  than  forty 
(40)  inches  above  platform. 

IManner  of  Application  :  End-platform  handholds  shall  be 
securely  fastened  with  bolts,  rivets  or  screws. 

Uncoupling-levers. 
T^ncoupling  attachments  shall  be  applied  so  they  can  be 
operated  by  a  person  standing  on  the  ground. 


APPENDIX   D. 


649 


Minimum  length  of  ground  uncoupling-attachment,  forty- 
two  (42)  inches,  measured  from  center  of  end  of  car  to  handle 
of  attachment. 

On  passenger-train  ears  used  in  freight  or  mixed-train 
ser^ace  the  uncoupling  attachments  shall  be  so  applied  that 
the  coupler  can  be  operated  from  left  side  of  car. 

PASSENGER-TRAIN  CARS  WITHOUT  END- 
PLATFORMS. 

Hand-brakes. 

Number  :  Each  passenger-train  car  shall  be  equipped  ^vith 
an  efficient  hand-brake  which  shall  operate  in  harmony  with 
the  power-brake  thereon. 

Location  :  Each  hand-brake  shall  be  so  located  that  it  can 
be  safely  operated  while  car  is  in  motion. 

Sill-steps. 

Number:   Four  (4). 

Dimensions:  Minimum  length  of  tread  ten  (10),  prefer- 
ably twelve  (12)    inches. 

]\Iinimum  cross-sectional  area  one-half  (i/o)  by  one  and  one- 
half  (li/o)  inches  or  equivalent,  wrought  iron  or  steel. 

Minimum  clear  depth  eight  (8)  inches. 

Location:  One  (1)  near  each  end  on  each  side  not  more 
than  twenty-four  (24)  inches  from  corner  of  car  to  center  of 
tread  of  sill-step. 

Outside  edge  of  tread  of  step  shall  be  not  more  than  two 
(2)  inches  inside  of  face  of  side  of  car. 

Tread  shall  be  not  more  than  twenty-four  (24),  preferably 
not  more  than  twenty-two  (22)    inches  above  the  top  of  rail. 

Manner  op  Application:  Steps  exceeding  eighteen  (18) 
inches  in  depth  shall  have  an  additional  tread  and  be  laterally 
braced. 

Sill-steps  shall  be  securely  fastened  with  not  less  than 
one-half   (i^)   inch  bolts  with  nuts  outside   (when  possible) 


650  FEDERAL   EMPLOYERS'    SAFETY   APPLIANCE   ACT. 

and  riveted  over,  or  with  not  less  than  one-half   (i^)   inch 
rivets. 

Side-handholds. 

Number:   Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  sixteen  (16)  preferably  t\venty- 
four   (24)    inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Location  :  Horizontal  or  vertical :  One  ( 1 )  near  each  end 
on  each  side  of  car  over  sill-step. 

If  horizontal,  not  less  than  twenty-four  (24)  nor  more  than 
thirty  (30)  inches  above  center  line  of  coupler. 

If  vertical,  lower  end  not  less  than  eighteen  (18)  nor  more 
than  twenty-four  (24)  inches  above  center  line  of  coupler. 

]\Ianner  op  Application  :  Side-handholds  shall  be  securely 
fastened  with  bolts,  rivets  or  screws. 

End-iiandholds. 

Number:    Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  sixteen  (16)  inches. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Location:  Horizontal:  One  (1)  near  each  side  on  each  end 
projecting  downward  from  face  of  end-sill  or  sheathing. 
Clearance  of  outer  end  of  handhold  shall  be  not  more  than 
sixteen  (16)  inches  from  side  of  car. 

Manner  of  Application  :  Handholds  shall  l)e  flush  with  or 
project  not  more  tlian  one   (1)  inch  beyond  face  of  end-sill. 

End-handholds  sluill  be  securely  fastened  v/ith  bolts  or 
rivets. 

When  marker-sockets  or  ])rackets  are  located  so  that  they 
cannot  be  conveniently  readied  from  platforms,  suitable  steps 


V 

APPENDIX    D.  651 

and  handholds  shall  be  provided  for  men  to  reach  such  sockets 
or  brackets. 

End-handrails. 

[On  cars  unth  projecting  end-sills.] 

Number:   Four  (4). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Location:  One  (1)  on  each  side  of  each  end,  extending 
horizontally  from  door-post  or  vestibule-frame  to  a  point  not 
more  than  six  (6)  inches  from  corner  of  car,  then  approxi- 
mately vertical  to  a  point  not  more  than  six  (6)  inches  from 
top  of  platform  end-sill ;  horizontal  portion  shall  be  not  less 
than  thirty  (30)  nor  more  than  sixty  (60)  inches  above  plat- 
form end-sill. 

Manner  op  Application  :  End  hand-rails  shall  be  securely 
fastened  with  bolts,  rivets  or  screws. 

Side-door  Steps. 

Number:    One  (1)  under  each  door. 

Dimensions:  Minimum  length  of  tread,  ten  (10),  prefer- 
ably twelve  (12)    inches. 

Minimum  cross-sectional  area,  one-half  (I/2)  by  one  and 
one-half  (ly^)  inches  or  equivalent,  wrought  iron  or  steel. 

Minimum  clear  depth,  eight  (8)  inches. 

Location  :  Outside  edge  of  tread  of  step  not  more  than 
two  (2)  inches  inside  of  face  of  side  of  car. 

Tread  not  more  than  twenty-four  (24),  preferably  not  more 
than  twenty-two  (22)    inches  above  the  top  of  rail. 

Manner  of  Application:  Steps  exceeding  eighteen  (18) 
inches  in  depth  shall  have  an  additional  tread  and  be  laterally 
braced. 

Side-door  steps  shall  be  securely  fastened  with  not  less  than 
one-half  (V2)  iiich  bolts  \\ath  nuts  outside  (when  possible) 
and  riveted  over,  or  \nth  not  less  than  one-half  (i/o)  inch 
rivets. 


652  federaij  employers'  safety  appllvnce  act. 

A  vertical  handhold  not  less  than  twenty-four  (24)  inches 
in  clear  length  shall  be  applied  above  each  side-door  step  on 
door-post. 

Uncoupling-levers. 

Uncoupling  attachments  shall  be  applied  so  they  can  be 
operated  by  a  person  standing  on  the  ground. 

Minimum  length  of  ground  uncoupling-attachment,  forty- 
two  (42)  inches,  measured  from  center  line  of  end  of  car 
to  handle  of  attachment. 

On  passenger-train  cars  used  in  freight  or  mixed-train 
sendee,  the  uncoupling  attachment  shall  be  so  applied  that 
the  coupler  can  be  operated  from  the  left  side  of  car. 

STEAM  LOCOMOTIVES  USED  IN  ROAD  SERVICE. 

Tender  Sill-steps. 

Number:   Four  (4)  on  tender. 

Dimensions:  Bottom  tread  not  less  than  eight  (8)  by 
twelve  (12)  inches,  metal. 

[May  have  wooden  treads.] 

If  stirrup-steps  are  used,  clear  length  of  tread  shall  be  not 
less  than  ten  (10),  preferably  twelve  (12)    inches. 

Location:  One  (1)  near  each  corner  of  tender  on  sides. 

Manner  of  Application  :  Tender  sill-steps  shall  be  securely 
fastened  with  bolts  or  rivets. 

Pilot  Sill-steps.  ' 

Number:   Two  (2). 

Dimensions:  Tread  not  less  than  eiglit  (8)  inches  in  width 
by  ten  (10)  inches  in  Icngtli,  metal. 

[May  have  ivooden  treads.] 

Location:  One  (1)  on  or  near  each  end  of  buffer-beam 
outside  of  rail  and  not  more  than  sixteen  (16)  inches  above 
rail. 

]\Ianner  of  Application  :  Pilot  sill-steps  shall  be  securely 
fastened  with  bolts  or  rivets. 


appendix  d.  653 

Pilot-beam  Handholds. 

Number:   Two  (2). 

Dimensions  :  Minimum  diameter,  five-eighths  ( % )  of  an 
inch,  wrought  iron  or  steel. 

Minimum  clear  length,  fourteen  (14),  preferably  sixteen 
(16),  inches. 

]\Iinimum  clearance,  two  and  one-half  (21^)  inches. 

Location:   One  (1)  on  each  end  of  buffer-beam. 

[//  uncoupling -lever  extends  across  front  end  of  locomotive 
to  within  eiglxt  (8)inches  of  end  of  huffer-deam,  and  is  seven- 
eighths  (%)  of  an  inch  or  more  in  diameter,  securely  fastened, 
with  a  clearance  of  two  and  one-half  (-2I/2)  inches,  it  is  a 
handhold.] 

IManner  of  Application  :  Pilot-beam  handholds  shall  be 
securely  fastened  with  bolts  or  rivets. 

Side-h  andholds. 

Number:    Six  (6). 

Dimensions  :  ]\Iinimum  diameter,  if  horizontal,  five-eighths 
(%)  of  an  inch;  if  vertical,  seven-eighths  (%)  of  an  inch, 
wrought  iron  or  steel. 

Horizontal,  minimum  clear  length,  sixteen  (16)  inches. 

Vertical,  clear  length  equal  to  approximate  height  of  tank. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Location:  Horizontal  or  vertical:  If  vertical,  one  (1)  on 
each  side  of  tender  within  six  (6)  inches  of  rear  or  on  corner, 
if  horizontal,  same  as  specified  for  "Box  and  other  house 
cars. ' ' 

One  (1)  on  each  side  of  tender  near  gangway;  one  (1)  on 
each  side  of  locomotive  at  gangway;  applied  vertically. 

j\L4Nner  of  Application  :  Side-handholds  shall  be  securely 
fastened  with  not  less  than  one-half  (i/^)  inch  bolts  or  rivets. 

Rear-end  Handholds. 
Number:   Two  (2). 

Dimensions:  Minimum  diameter,  five-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 


654  FEDERAL   EMPLOYERS'   SAFETY    APPLLUS'CB   ACT. 

Minimum  clear  length,  fourteen  (14)  inches. 

Minimum  clearance  two  (2),  preferably  two  and  one-half 
(21/2)  inches. 

Location:  Horizontal:  One  (1)  near  each  side  of  rear  end 
of  tender  on  face  of  end-sill.  Clearance  of  outer  end  of  hand- 
hold shall  be  not  more  than  sixteen  (16)  inches  from  side  of 
tender. 

Manner  of  Application:  Rear-end  handholds  shall  be  se- 
curely fastened  with  not  less  than  one-half  (^)  inch  bolts 
or  rivets. 

Uncoupling-levers. 

Number:  Two  (2)  double  levers,  operative  from  either 
side. 

Dimensions:  Rear-end  levers  shall  extend  across  end  of 
tender  wdth  handles  not  more  than  twelve  (12),  preferably 
nine  (9)  inches  from  side  of  tender  with  a  guard  bent  on 
handle  to  give  not  less  than  two  (2)  inches  clearance  around 
handle. 

Location:  One  (1)  on  rear  end  of  tender  and  one  (1)  on 
front  end  of  locomotive. 

Handles  of  front-end  levers  shall  be  not  more  than  twelve 
(12),  preferably  nine  (9)  inches  from  ends  of  buffer-beam, 
and  shall  be  so  constructed  as  to  give  a  minimum  clearance 
of  two  (2)  inches  around  handle. 

]\Ianner  of  Application  :  Uncoupling-levers  shall  be  se- 
curely fastened  with  bolts  or  rivets. 

Couplers. 
Locomotives   shall   bo    equipped   "udth   automatic    couplers 
at  rear  of  tender  and  front  of  locomotive. 

STEAM  LOCOMOTIVES  USED  IN  SWITCHING 
SERVICE. 

Footboards. 
Number:  Two  (2)  or  more. 

Dimensions:  Minimum  width  of  tread,  ten  (10)  inches, 
wood. 


APPENDIX    D.  655 

Minimum  thickness  of  tread,  one  and  one-half  (1V2)> 
preferably  two  (2)    inches. 

Minimum  height  of  back-stop,  four  (4)  inches  above  tread. 

Height  from  top  of  rail  to  top  of  tread,  not  more  than 
twelve  (12)  nor  less  than  nine  (9)  inches. 

Location  :   Ends  or  sides. 

If  on  ends,  they  shall  extend  not  less  than  eighteen  (18) 
inches  outside  of  gauge  of  straight  track,  and  shall  be  not 
more  than  twelve  (12)  inches  shorter  than  buffer-beam  at 
each  end. 

Manner  op  Application:  End  footboards  may  be  con- 
structed in  two  (2)  sections,  provided  that  practically  all 
space  on  each  side  of  coupler  is  filled;  each  section  shall  be 
not  less  than  three  (3)  feet  in  length. 

Footboards  shall  be  securely  bolted  to  two  (2)  one  (1)  by 
four  (4)  inches  metal  brackets,  provided  footboard  is  not  cut 
or  notched  at  any  point. 

If  footboard  is  cut  or  notched  or  in  two  (2)  sections,  not 
less  than  four  (4)  one  (1)  by  three  (3)  inches  metal  brackets 
shall  be  used,  two  (2)  located  on  each  side  of  coupler.  Each 
bracket  shall  be  securely  bolted  to  buffer-beam,  end-sill  or 
tank-frame  by  not  less  than  two  (2)  seven-eighths  {Y%)  inch 
bolts. 

If  side  footboards  are  used,  a  substantial  handliold  or  rail 
shall  be  applied  not  less  than  thirty  (30)  inches  nor  more 
than  sixty  (60)  inches  above  tread  of  footboard. 

Sill-steps. 

Number:    Two  (2)  or  more. 

Dimensions:  Lower  tread  of  step  shall  be  not  less  than 
eight  (8)  by  twelve  (12)  inches,  metal.  {May  have  wooden 
treads.] 

If  stirrup-steps  are  used,  clear  length  of  tread  shall  be  not 
less  than  ten  (10),  preferably  twelve  (12)    inches. 

Location:  One  (1)  or  more  on  each  side  at  gangway  se- 
cured to  locomotive  or  tender. 

I\Ianner  of  Application  :  Sill-steps  shall  be  securely 
fastened  with  bolts  or  rivets. 


656  federal  employers'  safety  appliance  act. 

End-handholds. 

Number:   Two  (2). 

Dimensions:  Minimum  diameter,  one  (1)  inch,  wrought 
iron  or  steel. 

Minimum  clearance,  four  (4)  inches,  except  at  coupler 
casting  or  braces,  when  minimum  clearance  shall  be  two  (2) 
inches. 

Location:  One  (1)  on  pilot  buffer-beam;  one  (1)  on  rear 
end  of  tender,  extending  across  front  end  of  locomotive  and 
rear  end  of  tender.  Ends  of  handholds  shall  be  not  more 
than  six  (6)  inches  from  ends  of  buffer-beam  or  end-sill, 
securely  fastened  at  ends. 

Manner  of  Application  :  End-handholds  shall  be  securely 
fastened  with  bolts  or  rivets. 

Side-handholds. 

Number:   Four  (4). 

Dimensions:  Minimum  diameter,  seven-eighths  (%)  of  an 
inch,  wrought  iron  or  steel. 

Clear  length  equal  to  approximate  height  of  tank. 

Minimum  clearance,  two  (2),  preferably  two  and  one-half 
(21/2)    inches. 

Location:  Vertical:  One  (1)  on  each  side  of  tender  near 
front  corner;  one  (1)  on  each  side  of  locomotive  at  gangway. 

Manner  of  Application  :  Side-handholds  shall  be  securely 
fastened  with  bolts  or  rivets. 

Uncoupling-levers. 

Number:  Two  (2)  double  levers,  operative  from  either 
side. 

Dimensions  :  Handles  of  front-end  levers  shall  be  not  more 
than  twelve  (12),  preferably  nine  (9)  inches  from  ends  of 
buffer-beam,  and  shall  be  so  constructed  as  to  give  a  minimum 
clearance  of  two  (2)  inches  around  handle. 

Rear-end  levers  shall  extend  across  end  of  tender  with 
handles  not  more  than  twelve  (12),  preferably  nine  (9), 
inches  from  side  of  tender,  with  a  guard  bent  on  handle  to 
give  not  less  than  two  (2)  inches  clearance  around  handle. 


APPENDIX   D.  657 

Location:  One  (1)  on  rear  end  of  tender  and  one  (1)  on 
front  end  of  locomotive. 

Handrails  and  Steps  for  Headlights. 
Switching-locomotive   with   sloping  tenders   with   manhole 
or  headlight  located  on  sloping  portion  of  tender  shall  be 
equipped  with  secure  steps  and  handrail  or  Avith  platform 
and  handrail  leading  to  such  manhole  or  headlight. 

End-ladder  Clearance. 

No  part  of  locomotive  or  tender  except  draft-rigging, 
coupler  and  attachments,  safety-chains,  buffer-block,  foot- 
board, brake-pipe,  signal-pipe,  steam-heat  pipe  or  arms  of 
uncoupling-lever  shall  extend  to  within  fourteen  (14)  inches 
of  a  vertical  plane  passing  through  the  inside  face  of  knuckle 
when  closed  with  horn  of  coupler  against  buffer-block  or 
end-sill. 

Couplers. 

Locomotives  shall  be  equipped  with  automatic  couplers 
at  rear  of  tender  and  front  of  locomotive. 

SPECIFICATIONS  COMMON  TO  ALL  STEAM 
LOCOMOTIVES. 

Hand-brakes. 

Hand-brakes  will  not  be  required  on  locomotives  nor  on 
tenders  when  attached  to  locomotives. 

If  tenders  are  detached  from  locomotives  and  used  in  special 
service,  they  shall  be  equipped  with  efficient  hand-brakes. 

Running-boards. 

Number:   Two  (2). 

Dimensions:  Not  less  than  ten  (10)  inches  wide.  If  of 
wood,  not  less  than  one  and  one-half  (l^/^)  inches  in  thick- 
ness; if  of  metal,  not  less  than  three-sixteenths  (3-16)  of  an 
inch,  properly  supported. 

Location:  One  {V)  on  each  side  of  boiler  extending  fi-om 
cab  to  front  end  near  pilot-beam.     [Bimning-boards  may  be 


658  FEDERAL   EMPLOYERS'    SAFETY    APPLLiNCE   ACT. 

in    sections.      Flat-top    steam-chests    may    form    section    of 
running-hoard.] 

^Ianner  op  Application  :  Running  boards  shall  be  securely 
fastened  with  bolts,  rivets  or  studs. 

Locomotives  having  Wootten  type  boilers  with  cab  located 
on  top  of  boiler  more  than  twelve  (12)  inches  forward  from 
boiler-head  shall  have  suitable  running-boards  running  from 
cab  to  rear  of  locomotive,  with  handrailings  not  less  than 
twenty  (20)  nor  more  than  forty-eight  (48)  inches  above  out- 
side edge  of  running-boards,  securely  fastened  with  bolts, 
rivets  or  studs. 

Handrails. 

Number:    Two  (2)  or  more. 

Dimensions:  Not  less  than  one  (1)  inch  in  diameter, 
wrought  iron  or  steel. 

Location:  One  (1)  on  each  side  of  boiler  extending  from 
near  cab  to  near  front  end  of  boiler,  and  extending  across 
front  end  of  boiler,  not  less  than  twenty-four  (24)  nor  more 
than  sixty-six  (66)  inches  above  running-board. 

i\lANNER  OF  Application  :  Handrails  shall  be  securely 
fastened  to  boiler. 

Tenders  of  Vanderbilt  Type. 

Tenders  known  as  the  Vanderbilt  type  shall  be  equipped 
with  running-boards;  one  (1)  on  each  side  of  tender  not  less 
than  ten  (10)  inches  in  width  and  one  (1)  on  top  of  tender 
not  less  than  forty-eight  (48)  inches  in  width,  extending 
from  coal  space  to  rear  of  tender. 

There  shall  be  a  handrail  on  eacli  side  of  top  running-board, 
extending  from  coal  space  to  rear  of  tank,  not  less  than  one 
(1)  inch  in  diameter  and  not  less  than  twenty  (20)  inches  in 
height  above  running-board  from  coal  space  to  manhole. 

There  shall  be  a  handrail  extending  from  coal  space  to 
within  twelve  (12)  inches  of  rear  of  tank,  attached  to 
each  side  of  tank  above  side  running-board,  not  less  than 
thirty  (30)  nor  more  than  sixty-six  (66)  inches  above  running- 
board. 


APPENDIX   D.  659 

There  shall  be  one  (1)  vertical  end-handhold  on  each  side 
of  Vanderbilt  type  of  tender,  located  within  eight  (8)  inches 
of  rear  of  tank  extending  from  within  eight  (8)  inches  of  top 
of  end-sill  to  within  eight  (8)  inches  of  side  handrail.  Post 
supporting  rear  end  of  side  rnnning-board  if  not  more  than 
two  (2)  inches  in  diameter  and  properly  located,  may  form 
section  of  handhold. 

An  additional  horizontal  end-handhold  shall  be  applied  on 
rear  end  of  all  Vanderbilt  type  of  tenders  which  are  not 
equipped  with  vestibules.  Handhold  to  be  located  not  less 
than  thirty  (30)  nor  more  than  sixty-six  (66)  inches  above 
top  of  end-sill.  Clear  length  of  handhold  to  be  not  less  than 
forty-eight  (48)  inches. 

Ladders  shall  be  applied  at  forward  ends  of  side  running- 
boards. 

Handrails  and  Steps  for  Headlights. 

Locomotives  having  headlights  which  can  not  be  safely 
and  conveniently  reached  from  pilot-beam  or  steam-chests 
shall  be  equipped  with  secure  handrails  and  steps  suitable 
for  the  use  of  men  in  getting  to  and  from  such  headlights. 

A  suitable  metal  end  or  side-ladder  shall  be  applied  to  all 
tanks  more  than  forty-eight  (48)  inches  in  height,  measured 
from  the  top  of  end-sill,  and  securely  fastened  with  bolts  or 
rivets. 

Couplers. 

Locomotives  shall  be  equipped  with  automatic  couplers 
at  rear  of  tender  and  front  of  locomotive. 

Cars  of  construction  not  covered  specifically  in  the  fore- 
going sections,  relative  to  handholds,  sill-steps,  ladders,  hand- 
brakes and  running-boards  may  be  considered  as  of  special 
construction,  but  shall  have,  as  nearly  as  possible,  the  same 
complement  of  handholds,  sill-steps,  ladders,  hand-brakes  and 
running-boards  as  are  required  for  cars  of  the  nearest  ap- 
proximate type. 

''Right"  or  "Left"  refers  to  side  of  person  when  facing 
end  or  side  of  ear  from  ground. 


660  FEDERAL   EMPLOYERS'    SAFETY   APPLIANCE    ACT. 

To  provide  for  the  usual  inaccuracies  of  manufacturing  and 
for  wear,  where  sizes  of  metal  are  specified,  a  total  variation 
of  five  (5)  per  cent,  below  size  given  is  permitted. 

And  it  is  further  ordered,  That  a  copy  of  this  order  be  at 
once  served  on  all  common  carriers,  subject  to  the  provisions 
of  said  act,  in  a  sealed  envelope  by  registered  mail. 
By  the  Commission : 

Edward  A.  LIoseley,  Secretary. 
A  true  copy. 

EoviT.  A.  Moseley, 

Secretary. 


INTERSTATE  COMMERCE  COMMISSION. 
ORDER. 

At  a  General  Session  of  the  Interstate  Commerce  Com- 
mission, Held  at  its  Office  in  Washington,  D.  C,  on 
THE  13th  Day  of  March,  A.  D.  1911. 

Present: 

JuDSON  C.  Clements, 

Charles  A.  Prouty, 

Franklin  K.  Lane,         v      ^, 

^  ^    _,  )       Commissioners. 

Edgar  E.  Clark, 

James  S.  Harlan, 

Charles  C.  McChord, 

Balthasae  H.  Meyer, 

IN  THE  MATTER  OF  THE  EXTENSION  OF  THE 
PERIOD  WITHIN  WHICH  COMMON  CARRIERS 
SHALL  COMPLY  WITH  THE  REQUIREMENTS  OF 
AN  ACT  ENTITLED,  "AN  ACT  TO  SUPPLEMENT 
'AN  ACT  TO  PROMOTE  THE  SAFETY  OF  EM- 
PLOYEES AND  TRAVELERS  UPON  RAILROADS  BY 
COMPELLING  COMMON  CARRIERS  ENGAGED  IN 
INTERSTATE  COMMERCE  TO  EQUIP  THEIR  CARS 
WITH  AUTOMATIC  COUPLERS  AND  CONTINUOUS 


INTERSTATE  COMMERCE  COMMISSION 


PLATES  ILLUSTRATING  UNITED 

STATES  SAFETY  APPLIANCE 

STANDARDS 

JULY  1,  1911 


661 


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APPENDIX   D.  681 

BRAKES  AND  THEIR  LOCOMOTIVES  WITH  DRIV- 
ING-WHEEL BRAKES  AND  FOR  OTHER  PUR- 
POSES,' AND  OTHER  SAFETY  APPLIANCE  ACTS, 
AND  FOR  OTHER  PURPOSES,"  APPROVED  APRIL 
14,  1910,  AS  AMENDED  BY  "AN  ACT  MAKING  AP- 
PROPRIATIONS FOR  SUNDRY  CIVIL  EXPENSES 
OF  THE  GOVERNMENT  FOR  THE  FISCAL  YEAR 
ENDING  JUNE  30,  1912,  AND  FOR  OTHER  PUR- 
POSES," APPROVED  MARCH  4,  1911. 

Whereas,  Pursuant  to  the  provisions  of  the  act  above  stated, 
the  Interstate  Commerce  Commission,  by  its  orders  duly  made 
and  entered  on  October  13,  1910,  and  March  13,  1911,  has 
designated  the  number,  dimensions,  location,  and  manner  of 
application  of  the  appliances  provided  for  by  Section  2  of 
the  act  aforesaid  and  Section  4  of  the  act  of  ]\Tarch  2,  1893, 
as  amended  April  1,  1896,  and  March  2,  1903,  known  as  the 
"Safety  Appliance  Acts";  and  whereas  the  matter  of  ex- 
tending the  period  within  which  common  carriers  shall  comply 
with  the  provisions  of  Section  2  of  the  act  first  aforesaid 
being  under  consideration,  upon  full  hearing  and  for  good 
cause  shown: 

It  is  ordered,  That  the  period  of  time  within  wliich  said 
common  carriers  shall  comply  with  the  provisions  of  Section 
3  of  said  act  in  respect  of  the  equipment  of  cars  in  service 
en  the  1st  day  of  July,  1911,  be,  and  the  same  is  hereby,  ex- 
tended as  follows,  to-wit: 

Freight-train  Cars. 

(a)  Carriers  are  not  required  to  change  the  brakes  from 
right  to  left  side  on  steel  or  steel-underframe  cars  with  plat- 
form end-sills,  or  to  change  the  end-ladders  on  such  cars, 
except  when  such  appliances  are  renewed,  at  which  time  they 
must  be  made  to  comply  with  the  standards  prescribed  in  said 
order  of  March  13,  1911. 

(6)  Carriers  are  granted  an  extension  of  five  years  from 
July  1,  1911,  to  change  the  location  of  brakes  on  all  cars  other 


682  FEDERAL   EMPLOYERS'   SAFETY    APPLIANCE    ACT. 

than  those  designated  in  paragraph  (a)  to  comply  vnXh  the 
standards  prescribed  in  said  order. 

(c)  Carriers  are  granted  an  extension  of  five  years  from 
July  1,  1911,  to  comply  with  the  standards  prescribed  in  said 
order  in  respect  of  all  brake  specifications  contained  therein, 
other  than  those  designated  in  paragraphs  (a)  and  (&),  on 
ears  of  all  classes. 

(d)  Carriers  are  not  required  to  make  changes  to  secure 
additional  end-ladder  clearance  on  cars  that  have  ten  or  more 
inches  end-ladder  clearance,  v^athin  thirty  inches  of  side  of 
car,  until  ear  is  shopped  for  work  amounting  to  practically 
rebuilding  body  of  car,  at  which  time  they  must  be  made  to 
comply  with  the  standards  prescribed  in  said  order. 

(e)  Carriers  are  granted  an  extension  of  five  years  from 
July  1,  1911,  to  change  cars  having  less  than  ten  inches  end- 
ladder  clearance,  within  thirty  inches  of  side  of  car,  to  comply 
with  the  standards  prescribed  in  said  order. 

(/)  Carriers  are  granted  an  extension  of  five  years  from 
July  1,  1911,  to  change  and  apply  all  other  appliances  on 
freight-train  cars  to  comply  with  the  standards  prescribed 
in  said  order,  except  that  when  a  car  is  shopped  for  work 
amounting  to  practically  rebuilding  body  of  car,  it  must  then 
be  equipped  according  to  the  standards  prescribed  in  said 
order  in  respect  to  handholds,  running-boards,  ladders,  sill- 
steps,  and  brake-staffs :  Provided,  That  the  extension  of  time 
herein  granted  is  not  to  be  construed  as  relieving  carriers 
from  complying  with  the  provisions  of  Section  4  of  the 
Act  of  March  2, 1893,  as  amended  April  1, 1896,  and  March  2, 
1903. 

(g)  Carriers  are  not  required  to  change  the  location  of 
handholds  (except  end-handholds  under  end-sills),  ladders, 
sill-steps,  brake-wheels,  and  brake-staffs  on  freight-train  cars 
where  the  appliances  are  within  three  inches  of  the  required 
location,  except  that  when  cars  undergo  regular  repairs  they 
must  be  made  to  comply  with  the  standards  prescribed  in 
said  order. 


appendix  d,  683 

Passenger-train  Cars. 
(h)   Carriers  are  granted  an  extension  of  three  years  from 
July  1,  1911,  to  change  passenger-train  cars  to  comply  with 
the  standards  prescribed  in  said  order. 

Locomotives,  Switching. 
(i)   Carriers  are  granted  an  extension  of  one  year  from 
July  1,  1911,  to  change  switching  locomotives  to  comply  with 
the  standards  prescribed  in  said  order. 

Locomotives,  Other  Than  Switching. 
(j)   Carriers  are  granted  an  extension  of  two  years  from 
July  1,  1911,  to  change  all  locomotives  of  other  classes  to 
comply  with  the  standards  prescribed  in  said  order. 
A  true  copy. 

Edw.  a.  Moseley, 

Secretary. 


BOILER  INSPECTION  LAW. 

36  U.  S.  Stat,  at  L.  913. 

An  Act  to  promote  the  safety  of  employees  and  travelers 
upon  railroads  by  compelling  common  carriers  engaged  in 
interstate  commerce  to  equip  their  locomotives  wdth  safe  and 
suitable  boilers  and  appurtenances  thereto. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That 
the  provisions  of  this  Act  shall  apply  to  any  common  carrier 
or  carriers,  their  officers,  agents,  and  employees,  engaged  in 
the  transportation  of  passengers  or  property  by  railroad  in 
the  District  of  Columbia,  or  in  any  territory  of  the  United 
States,  or  from  one  state  or  territory  of  the  United  States  or 
the  District  of  Columbia  to  any  other  state  or  territory  of  the 
United  States  or  the  District  of  Columbia,  or  from  any  place 
in  the  United  States  to  an  adjacent  foreign  country,  or  from 
any  place  in  the  United  States  through  a  foreign  country  to 
any  other  place  in  the  United  States.    The  term  ' '  railroad ' '  as 


684  FEDERAL   EMPLOYERS'    SAFETY    APPLIANCE   ACT. 

used  in  this  Act  shall  include  all  the  roads  in  use  by  any 
common  carrier  operating  a  railroad,  whether  owned  or 
operated  under  a  contract,  agreement,  or  lease ;  and  the  term 
"employees"  as  used  in  this  Act  shall  be  held  to  mean  persons 
actually  engaged  in  or  connected  with  the  movement  of  any 
train. 

Sec.  2.  That  from  and  after  the  first  day  of  July,  nineteen 
hundred  and  eleven,  it  shall  be  unlawful  for  any  common 
carrier,  its  officers  or  agents,  subject  to  this  Act  to  use  any 
locomotive  engine  propelled  by  steam  power  in  moving  inter- 
state or  foreign  traffic  unless  the  boiler  of  said  locomotive  and 
appurtenances  thereof  are  in  proper  condition  and  safe  to 
operate  in  the  service  to  which  the  same  is  put,  that  the  same 
may  be  employed  in  the  active  service  of  such  carrier  in 
moving  traffic  without  unnecessary  peril  to  life  or  limb,  and 
all  boilers  shall  be  inspected  from  time  to  time  in  accordance 
with  the  provisions  of  this  Act,  and  be  able  to  -uHithstand  such 
test  or  tests  as  may  be  prescribed  in  the  rules  and  regulations 
hereinafter  provided  for. 

Sec.  3.  That  there  shall  be  appointed  by  the  President, 
by  and  vntli  the  advice  and  consent  of  the  Senate,  a  chief 
inspector  and  two  assistant  chief  inspectors  of  locomotive 
boilers,  who  shall  have  general  superintendence  of  the  inspec- 
tors hereinafter  provided  for,  direct  them  in  the  duties  hereby 
imposed  upon  them,  and  see  that  the  requirements  of  this  Act 
and  the  rules,  regulations,  and  instructions  made  or  given 
hereunder  are  observed  by  common  carriers  subject  hereto. 
The  said  chief  inspector  and  his  two  assistants  shall  be  se- 
lected with  reference  to  their  practical  knowledge  of  the  con- 
struction and  repairing  of  boilers,  and  to  their  fitness  and 
ability  to  systematize  and  carry  into  effect  the  provisions 
hereof  relating  to  the  inspection  and  maintenance  of  locomo- 
tive boilers.  The  chief  inspector  shall  receive  a  salary  of  four 
thousand  ($4000)  dollars  per  year,  and  the  assistant  chief 
inspectors  shall  each  receive  a  salary  of  three  thousand 
($3000)  dollars  per  year;  and  each  of  the  three  shall  be  paid 
his  traveling  expenses  incurred  in  the  performance  of  his 


APPENDIX   D.  685 

duties.  The  office  of  the  chief  inspector  shall  be  in  Washing- 
ton, District  of  Columbia,  and  the  Interstate  Commerce  Com- 
mission shall  provide  such  stenographic  and  clerical  help  as 
the  business  of  the  offices  of  the  chief  inspector  and  his  said 
assistants  may  require. 

Sec.  4.  That  immediately  after  his  appointment  and  quali- 
fication the  chief  inspector  shall  divide  the  territory  com- 
prising the  several  states,  the  territories  of  New  Mexico  and 
Arizona,  and  the  District  of  Columbia  into  fifty  locomotive 
boiler-inspection  districts,  so  arranged  that  the  service  of  the 
inspector  appointed  for  each  district  shall  be  most  effective, 
and  so  that  the  work  required  of  each  inspector  shall  be  sub- 
stantially the  same.  Thereupon  there  shall  be  appointed  by 
the  Interstate  Commerce  Commission  fifty  inspectors  of  loco- 
motive boilers.  Said  inspectors  shall  be  in  the  classified 
service,  and  shall  be  appointed  after  competitive  examination 
according  to  the  law  and  the  rules  of  the  Civil  Service  Com- 
mission governing  the  classified  service.  The  chief  inspector 
shall  assign  one  inspector  so  appointed  to  each  of  the  dis- 
tricts hereinbefore  named.  Each  inspector  shall  receive  a 
salary  of  one  thousand  eight  hundred  ($1,800)  dollars  per 
year  and  his  traveling  expenses  while  engaged  in  the  per- 
formance of  his  duty.  He  shall  receive  in  addition  thereto 
an  annual  allowance  for  office  rent,  stationery,  and  clerical 
assistance,  to  be  fixed  by  the  Interstate  Commerce  Commission, 
but  not  to  exceed  in  the  case  of  any  district  inspector  six  hun- 
dred ($600)  dollars  per  year.  In  order  to  obtain  the  most 
competent  inspectors  possible,  it  shall  be  the  duty  of  the  chief 
inspector  to  prepare  a  list  of  questions  to  be  propounded  to 
applicants  with  respect  to  construction,  repair,  operation, 
testing,  and  inspection  of  locomotive  boilers,  and  their  prac- 
tical experience  in  such  work,  which  list,  being  approved  by 
the  Interstate  Commerce  Commission,  shall  be  used  by  the 
Civil  Service  Commission  as  a  part  of  its  examination.  No 
person  interested,  either  directly  or  indirectly,  in  any 
patented  article  required  to  be  used  on  any  locomotive  under 
supervision,  or  who  is  intemperate  in  his  habits,  shall  be 


686  FEDERAL    EMPLOYERS'    SAFETY    APFIJANCE    ACT, 

eligible  to  hold  the  office  either  of  chief  inspector  or  assistant 
or  district  inspector. 

Sec.  5.  That  each  carrier  subject  to  this  Act  shall  file  its 
rules  and  instructions  for  the  inspection  of  locomotive  boilers 
with  the  chief  inspector  within  three  months  after  the  ap- 
proval of  this  Act,  and  after  hearing  and  approval  by  the 
Interstate  Commerce  Commission,  such  rules  and  instructions, 
with  such  modifications  as  the  Commission  requires,  shall  be- 
come obligatory  upon  such  carrier:  Provided,  however,  that 
if  any  carrier  subject  to  this  Act  shall  fail  to  file  its  rules  and 
instructions,  the  chief  inspector  shall  prepare  rules  and  in- 
structions not  inconsistent  herewith  for  the  inspection  of  loco- 
motive boilers,  to  be  observed  by  such  carrier;  which  rules 
and  instructions,  being  approved  by  the  Interstate  Commerce 
Commission,  and  a  copy  thereof  being  served  on  the  president, 
general  manager,  or  general  superintendent  of  such  carrier, 
shall  be  obligatory,  and  a  violation  thereof  punished  as  here- 
inafter provided:  Provided,  also,  that  such  common  carrier 
may,  from  time  to  time,  change  the  rules  and  regulations 
herein  provided  for,  ])ut  such  change  shall  not  take  effect,  and 
the  new  rules  and  regulations  be  in  force,  until  the  same  shall 
have  been  filed  with  and  approved  by  the  Interstate  Com- 
merce Commission.  The  chief  inspector  shall  also  make  all 
needful  rules,  regulations,  and  instructions  not  inconsistent 
herewith  for  the  conduct  of  his  office,  and  for  the  government 
of  the  district  inspectors :  Provided,  liowever,  that  all  such 
rules  and  instructions  shall  be  approved  by  the  Interstate 
Commerce  Commission  before  they  take  effect. 

Sec.  6.  That  it  shall  be  the  duty  of  each  inspector  to  be- 
come familiar,  so  far  as  practicable,  with  the  condition  of 
each  locomotive  boiler  ordinarily  housed  or  repaired  in  his 
district,  and  if  any  locomotive  is  ordinarily  lioused  or  repaired 
in  two  or  more  districts,  then  the  chief  inspector  or  an  as- 
sistant shall  make  such  division  between  inspectors  as  will 
avoid  the  necessity  for  duplication  of  work.  Each  inspector 
slijill  iiiMlcf  siidi  personal  inspection  of  the  locomotive  boilers 
under  his  care,  from  time  to  time,  as  may  be  necessary  to 


APPENDIX    D. 


687 


fully  carry  out  the  provisions  of  this  Act,  and  as  may  be 
consistent  with  his  other  duties,  but  he  shall  not  be  required 
to  make  such  inspections  at  stated  times  or  at  re^lar 
intervals.  His  first  duty  shall  be  to  see  that  the  carriers  make 
inspections  in  accordance  with  the  rules  and  regulations 
established  or  approved  by  the  Interstate  Commerce  Com- 
mission, and  that  carriers  repair  the  defects  which  such  in- 
spections disclose  before  the  boiler  or  boilers  or  appurte- 
nances pertaining  thereto  are  again  put  in  service.  To  this 
end  each  carrier  subject  to  this  Act  shall  file  with  the  inspec- 
tor in  charge,  under  the  oath  of  the  proper  officer  or  em- 
ployee, a  duplicate  of  the  report  of  each  inspection  required 
by  such  rules  and  regulations,  and  shall  also  file  with  such 
inspector,  under  the  oath  of  the  proper  officer  or  employee,  a 
report  showdng  the  repair  of  the  defects  disclosed  by  the  in- 
spection. The  rules  and  regulations  hereinbefore  provided  for 
shall  prescribe  the  time  at  which  such  reports  shall  be  made. 
Whenever  any  district  inspector  shall,  in  the  performance  of 
his  duty,  find  any  locomotive  boiler  or  apparatus  pertaining 
thereto  not  conforming  to  the  requirements  of  the  law  or  rules 
and  regulations  established  and  approved  as  hereinbefore 
stated,  he  shall  notify  the  carrier  in  writing  that  the  locomo- 
tive is  not  in  serviceable  condition,  and  thereafter  such  boiler 
shall  not  be  used  until  in  serviceable  condition :  Provided, 
that  a  carrier,  when  notified  by  an  inspector  in  writing  that 
a  locomotive  boiler  is  not  in  serviceable  condition,  because  of 
defects  set  out  and  described  in  said  notice,  may,  ^^'ithin  five 
days  after  receiving  said  notice,  appeal  to  the  chief  inspector 
by  telegraph  or  by  letter  to  have  said  boiler  re-examined,  and 
upon  receipt  of  the  appeal  from  the  inspector's  decision,  the 
chief  inspector  shall  assign  one  of  the  assistant  chief  in- 
spectors, or  any  district  inspector  other  than  the  one  from 
whose  decision  the  appeal  is  taken,  to  re-examine  and  inspect 
said  boiler  within  fifteen  days  from  date  of  notice.  If  on 
such  re-examination  the  boiler  is  found  in  serviceable  con- 
dition, the  chief  inspector  shall  immediately  notify  the  carrier 
in  writing,  whereupon  such  boiler  may  be  put  into  service 


688  FEDERAL    EMPLOYERS'    SAFETY    APPLIANCE    ACT, 

without  further  delay;  but  if  the  re-examination  of  said 
boiler  sustains  the  decision  of  the  district  inspector,  the  chief 
inspector  shall  at  once  notify  the  carrier  owning  or  operating 
such  locomotive  that  the  appeal  from  the  decision  of  the  in- 
spector is  dismissed,  and  upon  receipt  of  such  notice  the 
carrier  may,  within  thirty  days,  appeal  to  the  Interstate  Com- 
merce Commission,  and,  on  such  appeal,  and  after  hearing, 
said  Commission  shall  have  power  to  revise,  modify,  or  set 
aside  such  action  of  the  chief  inspector  and  declare  that  said 
locomotive  is  in  serviceable  condition,  and  authorize  the  same 
to  be  operated :  Provided,  further,  that  pending  either  appeal 
the  requirements  of  the  inspector  shall  be  effective. 

Sec.  7.  That  the  cliief  inspector  shall  make  an  annual 
report  to  the  Interstate  Commerce  Commission  of  the  work 
done  during  the  year,  and  shall  make  such  recommendations 
for  the  betterment  of  the  service  as  he  may  desire. 

Sec.  8.  That  in  the  case  of  accident  resulting  from  failure 
from  any  cause  of  a  locomotive  boiler,  or  its  appurtenances, 
resulting  in  serious  injury  or  death  to  one  or  more  persons, 
a  statement  forthwith  must  be  made  in  writing  of  the  fact  of 
such  accident,  by  the  carrier  owning  or  operating  said  loco- 
motive, to  the  chief  inspector.  Whereupon  the  facts  con- 
cerning such  accident  shall  be  investigated  by  the  chief  in- 
spector or  one  of  his  assistants,  or  such  inspector  as  the  chief 
inspector  may  designate  for  that  purpose.  And  where  the 
locomotive  is  disabled  to  the  extent  that  it  can  not  be  run  by 
its  own  steam,  the  part  or  parts  affected  by  the  said  accident 
shall  be  preserved  by  said  carrier  intact,  so  far  as  possible, 
without  hindrance  or  interference  to  traffic  until  after  said 
inspection.  The  chief  inspector  or  an  assistant,  or  the  desig- 
nated inspector  making  the  investigation,  shall  examine  or 
cause  to  be  examined  thoroughly  the  boiler  or  part  affected, 
making  full  and  detailed  report  of  the  cause  of  the  accident 
to  the  chief  inspector. 

The  Interstate  Commerce  Commission  may,  at  any  time, 
call  on  the  chief  inspector  for  a  report  of  any  accident  em- 
braced in  this  section,  and,  on  the  receipt  of  said  report,  if 


APPENDIX   D.  689 

it  deems  it  to  the  public  interest,  make  reports  of  such  in- 
vestigations, stating  the  cause  of  accident,  together  with  such 
recommendations  as  it  deems  proper.  Such  reports  shall  be 
made  public  in  such  manner  as  the  Commission  deems  proper. 
Neither  said  report  nor  any  report  of  said  investigation,  nor 
any  part  thereof,  shall  be  admitted  as  evidence  or  used  for 
any  purpose  in  any  suit  or  action  for  damages  growing  out  of 
any  matter  mentioned  in  said  report  or  investigation. 

Sec.  9.  That  any  common  carrier  violating  this  Act,  or 
any  rule  or  regulation  made  under  its  provisions,  or  any 
lawful  order  of  any  inspector,  shall  be  liable  to  a  penalty  of 
one  hundred  ($100)  dollars  for  each  and  every  such  violation, 
to  be  recovered  in  a  suit  or  suits  to  be  brought  by  the  United 
States  attorney  in  the  district  court  of  the  United  States  hav- 
ing jurisdiction  in  the  locality  where  such  violation  shall  have 
been  committed;  and  it  shall  be  the  duty  of  such  attorneys, 
subject  to  the  direction  of  the  Attorney-General,  to  bring  such 
suits  upon  duly  verified  information  being  lodged  with  them, 
respectively,  of  such  violations  having  occurred;  and  it  shall 
be  the  duty  of  the  chief  inspector  of  locomotive  boilers  to  give 
information  to  the  proper  United  States  attorney  of  all  viola- 
tions of  this  Act  coming  to  his  knowledge. 

Sec.  10.  That  the  total  amounts  directly  appropriated  to 
carry  out  the  provisions  of  this  Act  shall  not  exceed  for  any 
one  fiscal  year  the  sum  of  three  hundred  thousand  ($300,000) 
dollars. 

Approved,  February  17,  1911. 


APPENDIX   E. 

ASH   PANS 

An  act  To  promote  the  safety  of  employees  on  railroads. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  on  and  after  the  first  day  of  January,  nineteen  hundred 
and  ten,  it  shall  be  unlawful  for  any  common  carrier  engaged 
in  interstate  or  foreign  commerce  by  railroad  to  use  any  loco- 
motive in  moving  interstate  or  foreign  traffic,  not  equipped 
with  an  ash  pan,  which  can  be  dumped  or  emptied  and 
cleaned  without  the  necessity  of  any  employee  going  under 
such  locomotive. 

Sec.  2.  That  on  and  after  the  first  day  of  January,  nine- 
teen hundred  and  ten,  it  shall  be  unlawful  for  any  common 
carrier  by  railroad  in  any  Territory  of  the  United  States 
or  of  the  District  of  Columbia  to  use  any  locomotive  not 
equipped  with  an  ash  pan,  which  can  be  dumped  or  emptied 
and  cleaned  without  the  necessity  of  any  emplo^'^ee  going 
under  such  locomotive. 

Sec.  3.  That  any  any  such  common  carrier  using  any 
locomotive  in  violation  of  any  of  the  provisions  of  this  Act 
shall  be  liable  to  a  penalty  of  two  hundred  dollars  for  each 
and  every  such  violation,  to  be  recovered  in  a  suit  or  suits 
to  be  brought  by  the  United  States  district  attorney  in  the 
district  court  of  the  United  States  having  jurisdiction  in  the 
locality  whore  such  violation  shall  have  been  committed; 
and  it  shall  be  the  duty  of  such  district  attorney  to  bring 
such  suits  upon  duly  verified  information  being  lodged  with 
him  of  such  violation  having  occurred;  and  it  shall  also  be 
the  duty  of  the  Interstate  Commerce  Commission  to  lodge 
690 


APPENDIX  E.  691 

with  the  proper  district  attorneys  information  of  any  such 
violations  as  may  come  to  its  knowledge. 

Sec.  4.  That  it  shall  be  the  duty  of  the  Interstate  Com- 
merce Commission  to  enforce  the  provisions  of  this  Act,  and 
all  powers  heretofore  granted  to  said  Commission  are  hereby 
extended  to  it  for  the  purpose  of  the  enforcement  of  this  Act, 

Sec.  5.  That  the  term  "common  carrier"  as  used  in  this 
Act  shall  include  the  receiver  or  receivers  or  other  persons 
or  corporations  charged  with  the  duty  of  the  management 
and  operation  of  the  business  of  a  common  carrier. 

Sec.  6.  That  nothing  in  this  Act  contained  shall  apply  to 
any  locomotive  upon  which,  by  reason  of  the  use  of  oil, 
electricity,  or  other  such  agency,  an  ash  pan  is  not  necessary. 

'    Approved,  May  30,  1908. 


APPENDIX  F. 

HOURS  OF  LABOR  FOR  RAILROAD  MEN. 

An  act  To  promote  the  safety  of  employees  and  travelers 
upon  railroads  by  limiting  the  hours  of  service  of  em- 
ployees  thereon. 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled, 
That  the  provisions  of  this  Act  shall  apply  to  any  common 
carrier  or  carriers,  their  officers,  agents,  and  employees,  en- 
gaged in  the  transportation  of  passengers  or  property  by 
railroad  in  the  District  of  Columbia  or  any  Territorj^  of  the 
United  States,  or  from  one  State  or  Territory  of  the  United 
States  or  the  District  of  Columbia  to  any  other  State  or 
Territory  of  the  United  States  or  the  District  of  Columbia, 
or  from  any  place  in  the  United  States  to  an  adjacent  foreign 
country,  or  from  any  place  in  the  United  States  through  a 
foreign  country  to  any  other  place  in  the  United  States.  The 
term  "railroad"  as  used  in  this  Act  shall  include  all  bridges 
and  ferries  used  or  operated  in  connection  with  any  railroad, 
and  also  all  the  road  in  use  by  any  common  carrier  operating 
a  railroad,  whether  oMmed  or  operated  under  a  contract, 
agreement,  or  lease;  and  the  term  "employees"  as  used  in 
this  Act  shall  be  held  to  mean  persons  actually  engaged  in 
or  connected  with  the  movement  of  any  train. 

Sec.  2.  That  it  shall  be  unlawful  for  any  common  carrier, 
its  officers  or  agents,  subject  to  this  Act  to  require  or  j^ermit 
any  employee  subject  to  this  act  to  be  or  remain  on  duty  for 
a  longer  period  than  sixteen  consecutive  hours,  and  whenever 
any  such  employee  of  such  connnon  carrier  shall  have  been 
continuously  on  duty  for  sixteen  hours  he  shall  be  relieved 
692 


APPENDIX    F.  693 

and  not  required  or  permitted  again  to  go  on  duty  until 
he  has  had  at  least  ten  consecutive  hours  off  duty ;  and  no  such 
employee  who  has  been  on  duty  sixteen  hours  in  the  aggre- 
gate in  any  twenty-four-hour  period  shall  be  required  or 
permitted  to  continue  or  again  go  on  duty  without  having 
had  at  least  eight  consecutive  hours  off  duty;  Provided,  That 
no  operator,  train  dispatcher,  or  other  employee  who  by  the 
use  of  the  telegraph  or  telephone  dispatches  reports,  trans- 
mits, receives  or  delivers  orders  pertaining  to  or  affecting 
train  movements  shall  be  required  or  permitted  to  be  or 
remain  on  duty  for  a  longer  period  than  nine  hours  in  any 
twenty-four-hour  period  in  all  towers,  offices,  places,  and  sta- 
tions continuously  operated  night  and  day,  nor  for  a  longer 
period  than  thirteen  hours  in  all  towers,  offices,  places  and 
stations  operated  only  during  the  daytime,  except  in  case 
of  emergency,  when  the  employees  named  in  this  proviso 
may  be  permitted  to  be  and  remain  on  duty  for  four  ad- 
ditional hours  in  a  twenty-four-hour  period  on  not  exceed- 
ing three  days  in  any  week:  Provided  further,  The  Inter- 
state Commerce  Commission  may  after  full  hearing  in  a 
particular  case  and  for  good  cause  shown  extend  the  period 
within  which  a  common  carrier  shall  comply  with  the  pro- 
visions of  this  proviso  as  to  such  case. 

Sec.  3.  That  any  such  common  carrier  or  any  officer  or 
agent  thereof,  requiring  or  permitting  any  employee  to  go, 
be,  or  remain  on  duty  in  violation  of  the  second  section 
hereof,  shall  be  liable  to  a  penalty  of  not  to  exceed  five 
hundred  dollars  for  each  and  every  violation,  to  be  re- 
covered in  a  suit  or  suits  to  be  brought  by  the  United  States 
district  attorney  in  the  district  court  of  the  United  States 
having  jurisdiction  in  the  locality  where  such  violation  shall 
have  been  committed;  and  it  shall  be  the  duty  of  such  dis- 
trict attorney  to  bring  such  suits  upon  satisfactory  informa- 
tion being  lodged  with  him ;  but  no  such  suit  shall  be  brought 
after  the  expiration  of  one  year  from  the  date  of  such  viola- 
tion ;  and  it  shall  also  be  the  duty  of  the  Interstate  Commerce 
Commission  to  lodge  with  the  proper  district  attorneys  in- 


694  FEDERAL   HOURS   OF   LABOR   ACT. 

formation  of  any  such  violations  as  may  come  to  his  knowl- 
edge. In  all  prosecutions  under  this  Act  the  common 
carrier  shall  be  deemed  to  have  had  knowledge  of  all  acts  of 
all  its  officers  and  agents:  Provided,  That  the  provisions  of 
this  Act  shall  not  apply  in  any  case  of  casualty  or  unavoid- 
able accident  or  the  act  of  God  nor  where  the  delay  was  the 
result  of  a  cause  not  known  to  the  carrier  or  its  officer  or 
agent  in  charge  of  such  employee  at  the  time  said  employee 
left  a  terminal,  and  which  could  not  have  been  foreseen: 
Provided  further,  That  the  provisions  of  this  Act  shall  not 
apply  to  the  crews  of  wrecking  or  relief  trains. 

Sec.  4.  It  shall  be  the  duty  of  the  Interstate  Commerce 
Commission  to  execute  and  enforce  the  provisions  of  this 
Act  and  all  powers  granted  to  the  Interstate  Commerce 
Commission  are  hereby  extended  to  it  in  the  execution  of 
this  Act. 

Sec.  5.  That  this  Act  shall  take  effect  and  be  in  force 
one  year  after  its  passage. 

Approved,  March  4,  1907,  11 :50  a.  m. 


APPENDIX   F.  g95 


EEPORTS    OF   EAILI^OADS   TO    INTERSTATE    COM- 
MERCE COMMISSION. 

Excerpt  from  Section  20  of  the  Act  (to  Regulate  Commerce)  of 

February  4,  1887  (24  Stat,  at  L.  379),  as  Amended  June 

29,  1906   (34  Stat,  at  L.  584),  and  June  18, 

1910  (36  Stat,  at  L.  539.) 

Said  detailed  reports  shall  contain  all  the  required  statistics 
for  the  period  of  twelve  months,  ending  on  the  thirtieth  day 
of  June  in  each  year,  or  on  the  thirty-first  day  of  December 
in  each  year  if  the  commission  by  order  substitute  that  period 
for  the  year  ending  June  thirtieth,  and  shall  be  made  out  under 
oath,  and  filed  with  the  commission  at  its  office  in  Washington 
within  three  months  after  the  close  of  the  year  for  which  the 
report  is  made,  unless  additional  time  he  granted  in  any  case 
by  the  commission;  and  if  any  carrier,  person,  or  corporation 
subject  to  the  provisions  of  this  act  shall  fail  to  make  and  file 
said  annual  reports  within  the  time  above  specified,  or  within 
the  time  extended  by  the  commission,  for  making  and  filing  the 
same,  or  shall  fail  to  make  specific  answer  to  any  question  au- 
thorized by  the  provisions  of  this  section  within  thirty  days  from 
the  time  it  is  lawfully  required  so  to  do,  such  party  shall  for- 
feit to  the  United  States  the  sum  of  one  hundred  dollars  for 
each  and  every  day  it  shall  continue  to  be  in  default  with  re- 
spect thereto.  The  commission  also  shall  have  authority  by 
general  or  special  orders  to  require  said  carriers,  or  any  of  them, 
to  file  monthly  reports  of  earnings  and  expenses,  and  to  file 
periodical  or  special,  or  both  periodical  and  special,  reports 
concerning  all  matters  about  which  the  commission  is  author- 
ized or  required  by  this  or  any  other  law  to  inquire,  or  to  keep 
itself  informed,  or  wliich  it  is  required  to  enforce;  and  such 
periodical  or  special  reports  shall  be  under  oath  whenever  tlie 
commission  so  requires;  and  if  any  such  carrier  shall  fail  to 


596  '  FEDERAL   HOURS   OF   LABOR   ACT. 

make  and  file  any  such  periodical  or  special  report,  within  the 
time  fixed  by  the  commission,  it  shall  be  subject  to  the  forfeit- 
ures last  above  provided. 


OEDERS  OF  THE  INTERSTATE  COMMERCE  COM- 
MISSION CONCERNING  HOURS  OF  SERVICE 

Order  of  June  28,  1911,  in  re  Method  and  Form  of  Monthly 

Reports  of  Hours  of  Service  of  Employees  on  Railroads, 

Subject  to  the  Act  of  March  4,  1907. 

The  method  and  form  of  monthly  reports  of  hours  of  service 
of  employees  upon  railroads,  subject  to  the  Act  of  March  4, 
1907,  having  been  considered  by  the  commission: 

It  is  ordered,  That  all  carriers  subject  to  the  provisions  of  the 
act  entitled  "An  act  to  promote  the  safety  of  employees  and 
travelers  upon  railroads  by  limiting  the  hours  of  service  of  em- 
ployees thereon,"  approved  March  4,  1907,  report  within  30 
days  after  the  end  of  each  month,  under  oath,  all  instances 
where  employees  subject  to  said  act  have  been  on  duty  for  a 
longer  period  than  that  provided  in  said  act. 

It  is  furilier  ordered,  That  the  accompanying  forms  entitled 
"Interstate  Commerce  Commission  Hours  of  Service  Report," 
and  the  method  embodied  in  the  instructions  therein  set  forth, 
be,  and  the  same  are  hereby,  adopted  and  prescribed;  and  all 
common  carriers  subject  to  said  act  are  hereby  notified  to  use 
and  follow  the  said  prescribed  forms  and  method  in  making 
monthly  reports  of  hours  of  service  of  employees  on  duty  for  a 
longer  period  tlian  that  named  in  said  act,  commencing  with 
and  making  the  first  report  for  the  month  of  July,  1907. 

And  it  is  further  ordered,  That  copies  of  said  forms,  together 
with  a  copy  of  this  order,  be  forthwith  served  on  all  common 
carriers  subject  to  said  act. 


APPENDIX   F. 


697 


Order  of  April  8,  1912,  in  re  Alteration  of  the  Metliod  and  Form 

of  Monthly  Reports  of  Hours  of  Service  of  Employees 

on  Eailroads,  Suhject  to  the  Act  of  March  4,  1907. 

The  matter  of  alteration  in  the  method  and  form  of  monthly 
reports  of  hours  of  service  of  employees  on  railroads,  subject  to 
the  Act  of  March  4,  1907,  being  under  consideration: 

It  is  ordered,  That  the  accompanying  forms  entitled  "Inter- 
state Commerce  Commission  Hours  of  Service  Eeport,"  and 
designated  as  Form  No.  1 — Oath  and  summary  for  use  when 
there  is  excess  service.  Form  No.  8 — Oath  for  use  when  there 
is  no  excess  service.  Form  No.  2 — Employees  on  duty  more  than 
16  consecutive  hours.  Form  No.  3 — Employees  returned  to  duty 
after  16  hours  continuous  service,  without  10  consecutive  hours 
off  duty.  Form  No.  4 — Employees,  returned  to  duty,  after 
aggregate  service  of  16  hours,  without  8  consecutive  hours  oflf 
duty.  Form  No.  5 — Employees  continued  on  duty  after  aggre- 
gate service  of  16  hours.  Form  No.  6 — Employees  at  continu- 
ously operated  day  and  night  offices,  who  dispatch,  report,  trans- 
mit, receive,  or  deliver  orders  affecting  train  movements,  and 
who  were  on  duty  more  than  9  hours  in  any  24-hour  period. 
Form  No.  7 — Employees  at  offices  operated  only  during  the  day- 
time, or  not  to  exceed  13  hours  in  a  24-hour  period,  who  dis- 
patch, report,  transmit,  receive,  or  deliver  orders  affecting  train 
movements,  and  who  are  on  duty  for  a  longer  period  than  13 
hours  in  any  24-hour  period ;  and  the  method  embodied  in  the 
instructions  therein  set  forth,  be,  and  the  same  are  hereby, 
adopted  and  prescribed ;  and  all  common  carriers  subject  to  said 
act  are  hereby  notified  to  use  and  follow  the  said  prescribed 
forms  and  method  in  making  monthly  reports  of  hours  of  serv- 
ice -of  employees  on  duty  for  a  longer  period  than  that  named 
in  said  act,  commencing  with  and  making  the  first  report  for 
the  month  of  July,  1912. 

And  it  is  further  ordered,  That  copies  of  said  forms,  together 
with  a  copy  of  this  order,  be  forthwith  served  on  all  common 
carriers  subject  to  said  act. 


698  FEDERAL,   HOURS   OF   LABOR   ACT. 


ADMINISTRATIVE   RULINGS    OF   THE   INTERSTATE 
COMMERCE  COMMISSION. 

March  16,  1908.  No,  287.  General  iNTERPRETATioisr  of 
THE  Hours  of  Service  Act. —  (a)  The  provisions  of  this  act 
apply  to  all  common  carriers  by  railroad  in  the  District  of 
Columbia,  or  in  any  Territory  of  the  United  States,  or  engaged 
in  the  movement  of  interstate  or  foreign  traffic;  and  to  all 
employees  of  such  common  carriers  who  are  engaged  in  or  con- 
nected with  the  movement  of  any  train  carrying  traffic  in  the 
District  of  Columbia,  or  in  any  Territory,  or  carrying  inter- 
state or  foreign  traffic. 

(See  rule  56.) 

(&)  Sec.  2.  The  requirement  for  10  consecutive  hours  off 
duty  applies  only  to  such  employees  as  have  been  on  duty  for 
16  consecutive  hours.  The  requirement  for  8  consecutive  hours 
off  duty  applies  only  to  employees  who  have  not  been  on  duty 
16  consecutive  hours,  but  have  been  on  duty  16  hours  in  the 
aggregate  out  of  a  24-hour  period.  Such  24-hour  period  begins 
at  the  time  the  employee  first  goes  on  duty  after  having  had 
at  least  eight  consecutive  hours  off  duty.  The  term  "on  duty" 
includes  all  the  time  during  which  the  employee  is  performing 
service,  or  is  held  responsible  for  performance  of  service.  An 
employee  goes  "on  duty"  at  the  time  he  begins  to  perform  serv- 
ice, or  at  which  he  is  required  to  be  in  readiness  to  perform 
service,  and  goes  "off  duty"  at  the  time  he  is  relieved  from 
service  and  from  responsibility  for  performance  of  service. 

(Qualified  by  Rule  74.) 

(c)  The  act  does  not  specify  the  classes  of  employees  that 
are  subject  to  its  terms.  All  employees  engaged  in  or  con- 
nected with  the  movement  of  any  train,  as  described  in  section 
1,  are  within  its  scope.  Train  dispatchers,  conductors,  en- 
gineers, telegraphers,  firemen,  brakemen,  train  baggagemen  who, 
by  rules  of  carriers,  are  required  to  perform  any  duty  in  con- 
nection with  the  movement  of  trains,  yardmen,  switch  tenders, 
tower  men,  block  signal  operators,  etc.,  come  within  the  pro- 
visions of  the  statute. 


APPENDIX   F. 


699 


(Qualified  by  rules  108  and  275.     See  also  rule  88.) 

(d)  The  proviso  in  section  2  covers  every  employee  who, 
by  the  use  of  the  telegraph  or  telephone,  handles  orders  pertain- 
ing to  or  affecting  train  movements.  In  order  to  preserve  the 
obvious  intent  of  the  law,  this  provision  must  be  construed  to 
include  all  employees  who,  by  the  use  of  an  electrical  current, 
handle  train  orders  or  signals  which  control  movements  of 
trains. 

(See  rule  88.) 

(e)  The  prime  purpose  of  this  law  is  to  secure  additional 
safety  by  preventing  employees  from  working  longer  hours  than 
those  specified  in  the  act.  Therefore  a  telegraph  or  telephone 
operator,  who  is  employed  in  a  night  and  day  office,  may  not 
be  required  to  perform  duty  in  any  capacity  or  of  any  kind 
beyond  9  hours  of  total  service  in  any  24-hour  period. 

(/)  The  phrase  "towers,  offices,  places,  and  stations"  is  in- 
terpreted to  mean  particular  and  definite  locations.  The  pur- 
pose of  the  law  and  of  the  proviso  for  9  hours  of  service  may 
not  be  avoided  by  erecting  offices,  stations,  depots,  or  buildings 
in  close  proximity  to  each  other,  and  operating  from  one  a  part 
of  the  day  while  the  other  is  closed,  and  vice  versa.  The  statute 
is  remedial  in  its  intent,  and  must  have  a  broad  construction, 
so  that  the  purpose  of  the  Congress  may  not  be  defeated. 

(g)  The  commission  interprets  the  phrase  "continuously 
operated  night  and  day"  as  applying  to  all  offices,  places,  and 
stations  operated  during  a  portion  of  the  day  and  a  portion  of 
the  night  a  total  of  more  than  13  hours. 

The  phrase  "operated  only  during  the  daytime"  refers  to  sta- 
tions which  are  operated  not  to  exceed  13  hours  in  a  2-4-hour 
period,  and  is  not  considered  as  meaning  that  the  operator 
thereat  may  be  employed  only  during  the  daytime. 

(h)  The  act  provides  that  operators  employed  at  night  and 
day  stations  or  at  daytime  stations  may,  in  case  of  emergency, 
be  required  to  work  4  additional  hours  on  not  exceeding  3  days 
in  any  week.  Manifestly,  the  emergency  must  be  real,  and  one 
against  which  the  carrier  cannot  guard.  'Tn  any  week"  is  con- 
strued to  mean  in  any  calendar  week,  beginning  with  Sunday. 

(t)     Sec.  3.     The  instances  in  which  the  act  will  not  apply 


700  FEDERAL   HOURS   OF   LABOR   ACT. 

include  only  such  occurrences  as  could  not  be  guarded  against; 
those  which  involved  no  neglect  or  lack  of  precaution  on  the 
part  of  the  carrier,  its  agents,  or  officers;  and  they  serve  to 
waive  the  application  of  the  law  to  employees  on  trains  only 
until  such  employees,  so  delayed,  reach  a  terminal  or  relay  point. 

(See  rule  88.) 

"Casualty,"  like  its  synonyms  "accident"  and  "misfortune," 
may  proceed  or  result  from  negligence  or  other  cause,  known  or 
unknown.  (Words  and  Phrases  Judicially  Defined,  vol.  2,  1003.) 

"Act  of  God."  Any  accident  due  to  natural  causes  directly 
and  exclusively  without  human  intervention,  such  as  could  not 
have  been  prevented  by  any  amount  of  foresight  and  pains  and 
care  reasonably  to  have  been  expected. 

(Bouvier's  Law  Dictionary,  vol.  1,  79.) 

(;)  It  will  be  noted  that  the  penalties  for  violation  of  this 
act  are  against  the  "common  carriers,  or  any  officer  or  agent 
tliereof,  requiring  or  permitting  any  employee  to  go,  be,  or 
remain  on  duty"  in  violation  of  the  law.  It  is  clear  that  the 
officers  and  agents  of  carriers,  who  are  liable  to  the  penalties 
provided  in  the  act,  are  those  who  have  official  direction  or 
control  of  the  employees;  and  that  the  penalties  do  not  attach 
to  the  employees  who,  subject  to  such  supervision  or  control, 
perform  tlie  services  proliibited. 

(l-)  Sec.  4.  To  enforce  this  act  the  Interstate  Commerce 
Commission  has  all  tlie  j^owers  which  have  been  granted  to  it 
for  the  enforcement  of  the  act  to  regulate  commerce,  including 
authority  to  appoint  employees,  to  require  reports,  to  examine 
books,  papers,  and  documents,  to  administer  oaths,  to  issue 
su1)pocnas,  and  to  interrogate  witnesses. 

April  7,  1908.  iSTo.  56.  Street  Eailways.  Upon  inquiry 
whether  tlic  Hours  of  Service  T^aw  applies  to  electric  steel  car 
lines  which  are  interstate  carriers:  Held,  That  it  applies  to  all 
railroads  sul)jcct  to  the  provisions  of  the  act  to  regulate  com- 
merce, as  amended,  inchidiiig  street  railroads  when  engaged  in 
interstate  commerce.     (See  rule  287.) 

May  5,  1908.  Xo.  74.  Dkadiieadtng.  Employees  dead- 
lieading  on  passenger  trains  or  on  freiglit  trains,  and  not  re- 
quireil   to  perform,  and   not   licld    I'c.^ponsihU'    for  tlie  perform- 


APPENDIX   F, 


701 


ance  of,  any  service  or  duty  in  connection  with  the  movement 
of  the  train  upon  which  they  are  deadheading,  are  not  while  so 
deadheading  "on  duty"  as  that  phrase  is  used  in  the  act  regu- 
lating the  hours  of  labor,     (See  rule  287-b.) 

June  25,  1908.     No.  88.     Provisos  in  Sections  2  and  3. 

(a)  The  specific  proviso  (in  section  2)  of  the  law  in  regard 
to  hours  of  service  is : 

"That  no  operator,  train  dispatcher,  or  other  employee  who, 
by  use  of  the  telegraph  or  telephone,  dispatches,  reports,  trans- 
mits, receives,  or  delivers  orders  pertaining  to  or  affecting  train 
movements,  shall  be  required  or  permitted  to  be  or  remain  on 
duty  for  a  longer  period  than  9  hours  in  any  24-hour  period 
in  all  towers,  offices,  places,  and  stations  continuously  operated 
night  and  day,  nor  for  a  longer  period  than  13  hours  in  all 
towers,  offices,  places,  and  stations  operated  only  during  the 
daytime,  except  in  case  of  emergency,  when  the  employees 
named  in  this  proviso  may  be  permitted  to  be  and  remain  on 
duty  for  4  additional  hours  in  a  24-hour  period,  or  not  exceed- 
ing 3  days  in  any  week." 

These  provisions  apply  to  employees  in  towers,  offices,  places 
and  stations,  and  do  not  include  train  employees  who,  by  the 
terms  of  the  law,  are  permitted  to  be  or  remain  on  duty  16 
hours  consecutively  or  16  hours  in  the  aggregate  in  any  24-hour 
period,  and  who  may  occasionally  use  telegraph  or  telephone 
instruments  for  the  receipt  or  transmission  of  orders  affecting 
the  movement  of  trains.     (See  rule  287.) 

(h)     Section  3  of  the  law  provides  (inter  alia)  that: 

"The  provisions  of  this  act  shall  not  apply  in  any  case  of 
casualty  or  unavoidable  accident  or  the  act  of  God;  nor  where 
the  delay  was  the  result  of  a  cause  not  known  to  the  carrier  or 
its  officer  or  agent  in  charge  of  such  employee  at  the  time  said 
employee  left  a  terminal,  and  which  could  not  have  been  fore- 
seen." 

Any  employee  so  delayed  may  therefore  continue  on  duty  to 
the  terminal  or  end  of  that  run.  The  proviso  quoted  removes 
the  application  of  the  law  to  that  trip.     (See  rule  287.) 

November  10,  1908.  No.  108.  Ferry  Employees.  The 
Hours  of  Service  Law  does  not  apply  to  employees  on  a  ferry. 


702  FEDERAL,   HOURS   OF   LABOR   ACT. 

even  thongli  the  ferry  be  owned  by  a  railroad  company.  The 
law  applies  to  employees  connected  with  the  movement  of  trains, 
and  hence  does  not  embrace  employees  engaged  only  in  the 
operation  of  a  ferry.  This  ruling  does  not  apply  to  car  ferries. 
(See  rule  287.) 

April  4,  1910.  Xo.  275.  Train  Baggagemen.  The  provi- 
sions of  section  1,  of  the  Hours  of  Service  Law,  apply  to  train 
baggagemen  who  are  employees  of  the  railway  company,  and 
who  are  required  by  the  rules  of  the  company  to  perform  or  to 
hold  themselves  in  readiness,  when  called  on,  to  perform  any 
duty  connected  with  the  movement  of  any  train.  (See  rules 
74  and  287.) 

February  12,  1912.  No.  342.  Use  by  Trainmen  of  the 
Telegraph  or  Telephone.  A  trainman  required,  by  the  rules 
of  the  carrier,  in  conjunction  with  his  duties  as  trainman,  to 
send,  receive,  or  deliver  orders  affecting  the  movement  of  trains, 
comes  vs'ithin  the  proviso  of  section  2  of  the  Hours  of  Service 
Act,  and  therefore  a  carrier  may  not  require  a  trainman,  who 
has  been  on  duty  longer  than  the  limit  of  time  fixed  for  a  tele- 
phone or  telegraph  operator,  to  send,  receive  or  deliver  orders 
affecting  the  movement  of  trains,  as  a  part  of  the  duties  regu- 
larly assigned  to  him. 

But  upon  inquiry  whether  the  practice  of  requiring  con- 
ductors of  trains  delayed  at  stations  where  there  is  no  regularly 
assigned  telegraph  or  telephone  operator  on  duty,  and  con- 
ductors of  trains  about  to  be  overtaken  by  superior  trains,  to 
telephone  or  telegraph  the  train  dispatcher  for  instructions  is 
in  accord  with  the  act  and  with  the  commission's  order  of  inter- 
pretation of  June  25,  1908:  Held,  That  a  trainman,  who  has 
been  on  duty  for  more  than  9  hours,  or  for  more  than  13  hours, 
is  not  prohibited  from  occasionally  using  the  telegraph  or  tele- 
phone to  meet  an  emergency. 


APPENDIX   G. 

DECISIONS  UNREPORTED  (MARCH  23,  1909),  UNDER 
THE  SAFETY  APPLIANCE  ACTS. 

[My  thanks  are  due  to  Mr.  Edward  A.  Moseley  and  Mr.  George  B.  Mc- 
Ginty,  Secretaries  of  the  Interstate  Commerce  Commission,  for  these  decisions. 
The  first  two  are  taken  from  the  pamphlet  published  by  the  Interstate  Com- 
merce Commission,  April  1,  1907.  The  remainder  are  on  separate  sheets  fur- 
nished me  by  Mr.  Moseley,  and  subsequently  by  his  successor  Mr.  McGinty.] 

UNITED  STATES  v.  EL  PASO  AND  SOUTHWESTERN 
RAILROAD  COMPANY. 

(In  the  District  Court  of  the  Second  Judicial  District  of  the  Territory 

of  Arizona.) 

1.  Though  the  complaint  for  violation  of  the  Federal  safety  appliance 

acts  in  this  case  does  not  allege  that  the  defendant  is  a  common 
carrier  engaged  in  interstate  commerce,  it  does  allege  that  the  de- 
fendant is  a  common  carrier  engaged  in  commerce  by  railroad 
among  the  several  Territories  of  the  United  States,  particularly 
the  Territories  of  Arizona  and  New  Mexico,  and  that  is  sufficient, 
as  the  interterritorial  commerce  therein  alleged  is  equivalent,  un- 
der the  Safety-Appliance  Act  of  1903,  to  interstate  commerce  under 
the  original  act  of  1893. 

2.  Where  a  coupler  couples  by  impact,  but  cannot  be  uncoupled  unless 

the  employe  goes  between  or  over  the  cars,  or  around  the  end  of 
the  train,  in  order  to  reach  the  appliance  on  the  connecting  car, 
such  a  coupling  is  defective  and  prohibited  by  law,  as  it  makes  it 
reasonably  necessary  for  the  emploj'e  to  go  between  the  ends  of  the 
cars  to  uncouple  such  a  car. 

J.   L.  B.  Alexander,   United  States  Attorney,  for  the 
United  States. 

Herring,  Sorin  &  Elmwood  and  Hawkins  &  Franklin, 
for  the  defendant. 

(Decided  January  SO,  1907.) 

703 


704  FEDERAL  SAFETY  APPLIANCE  ACT. 

DoAN  Judge : 

This  action  was  brought  under  the  act  of  Congress 
known  as  the  "safety-appliance  act,"  approved  March  2, 
1893,  as  amended  by  an  act  approved  April  1,  1896,  and  as 
amended  by  an  act  approved  March  2,  1903,  contained  re- 
spectively in  the  Twenty-seventh  Statutes  at  Large,  page  531, 
in  the  Twenty-ninth  Statutes  at  Large,  page  85,  and  in  the 
Thirty-second  Statutes  at  Large,  page  943. 

The  plaintiff  alleged  that  the  defendant  "is  a  common 
carrier  engaged  in  commerce  by  railroad  among  the  several 
Territories  of  the  United  States,  and  particularly  the  Ter- 
ritories of  Arizona  and  New  Mexico,"  and  then  alleged  that 
in  violation  of  the  said  act  as  amended  the  "defendant  on 
March  3,  1906,  hauled  over  its  line  of  railroad  a  certain  oar 
generally  engaged  in  the  movement  of  interstate  traffic,  when 
the  coupling  and  uncoupling  apparatus  on  the  A  end  of 
said  car  was  out  of  repair  and  inoperative,  necessitating  a 
man  or  men  going  between  the  ends  of  the  cars  to  couple 
or  uncouple  them,  and  when  said  car  was  not  equipped  with 
couplers  coupling  automatically  by  impact,  and  which  could 
be  uncoupled  without  the  necessity  of  a  man  or  men  going 
between  the  ends  of  the  cars,  as  required  by  section  2  of 
the  said  "safety-appliance  act,  as  amended  by  section  1  of 
the  act  of  March  2,  1903,"  and  by  reason  of  the  violation 
of  the  said  act  the  defendant  was  liable  to  the  plaintiff  in 
the  sum  of  $100. 

The  second  and  third  causes  of  action  were  for  similar 
acts  in  violation  of  the  law  alleged  as  to  certain  other  cars 
hauled  by  the  defendant  on  its  said  road,  on  or  about  the 
same  date,  and  the  fourth  was  for  using  at  the  same  time 
on  its  line  of  railroad  one  locomotive  for  switching  at  its 
yards  in  Dougljis,  Ariz.,  cars  containing  interstate  traffic. 

It  was  urged  by  the  defendant  that  the  "safetv-appliance 
act"  was  confined  in  its  oi)erations  to  common  carriers  en- 
gaged in   interstate  commerce   l)y   railroad,   and   that  there 


APPENDIX    G.  705 

was  no  allegation  in  the  complaint  in  this  instance  that  the 
defendant  was  engaged  in  interstate  coramefce. 

Section  1  of  the  act  of  1893  provides:  "It  shall  be  un- 
lawful for  any  common  carrier  engaged  in  interstate  com- 
merce to  use  on  its  line,"  etc. 

Section  2  provides: 

It  sliall  be  unlawful  for  any  such  common  carrier  to  haul,  or  to 
permit  to  be  hauled  or  used  on  its  line,  any  car  used  in  moving  inter- 
state traffic  not  equipped  with  couplers  coupling  automatically  by  im- 
pact, and  which  can  be  uncoupled  without  the  necessity  of  a  man  going 
between  the  ends  of  the  cars,  etc. 

The  act  of  March  2,  1903,  provides  in  section  1 : 

That  the  provisions  and  requirements  of  the  act  .  .  .  approved 
March  2,  181)3,  and  amended  April  1,  1896,  shall  be  held  to  apply  to 
common  carriers  by  railroad  in  the  Territories  and  the  District  of  Co- 
lumbia. 

The  plaintiff  in  this  case  in  each  instance  has  alleged 
that  the  car  alleged  to  have  been  handled  in  violation  of  the 
act  was  "a  car  generally  used  in  the  movement  of  interstate 
traffic,"  or  "was  engaged  in  moving  traffic  in  and  between 
the  Territories  of  the  United  States,"  and  although  the  com- 
plaint did  not  in  so  many  words  allege  that  the  defendant 
was  "a  common  carrier  engaged  in  interstate  commerce  by 
railroad,"  it  did  allege  that  it  was  "a  common  carrier  en- 
gaged in  commerce  by  railroad  among  the  several  Territories 
of  the  United  States,  particularly  the  Territories  of  Arizona 
and  New  Mexico,"  which  allegation,  under  the  provisions 
of  section  1  of  the  act  of  1903,  that  declares  that  the  "safety- 
appliance  act"  shall  be  held  to  apply  to  common  carriers  by 
railroad  in  the  Territories  and  the  District  of  Columbia,  is 
sufficient.  The  interterritorial  commerce  therein  alleged 
being  equivalent  under  the  act  of  1903  to  interstate  com- 
merce under  the  original  act  of  March  2,  1893. 

The  violations  of  the  act  were  established  by   the  un- 


706  FEDERAL  SAFETY  APPLIANCE  A€T. 

disputed  testimony  in  the  case,  except  in  the  one  instance 
where  it  was  proven  that  the  coupling  appliances  on  one 
end  of  the  ear  hauled  were  perfect,  and  that  the  coupling 
appliances  on  the  other  end  of  the  car  were  such  as  would 
couple  by  impact;  and  and  it  was  alleged  by  the  defendant 
that  although  the  coupling  appliances  on  the  end  of  the  car 
complained  of  were  so  damaged,  and  thereby  imperfect,  that 
they  could  not  be  operated  by  a  man  without  the  necessity 
of  his  going  between  the  cars,  that  when  coupled  to  the  ad- 
joining car  on  which  the  appliances  were  in  perfect  order 
the  car  could  be  uncoupled  from  the  adjoining  car  without 
a  man  or  men  going  in  between  the  cars.  The  proof  devel- 
oped that  this  car  was  coupled  into  the  body  of  a  train,  and 
that  if  a  brakeman  was  sent  along  the  train  to  uncouple 
the  car  on  the  side  of  the  train  on  which  this  coupling  rod 
should  be  that  the  coupling  rod  on  the  adjoining  car  would 
naturally  be  on  the  other  side  of  the  train,  and  it  presented 
a  question  (in  the  absence  of  proof  on  the  part  of  the  de- 
fendant that  the  adjoining  car  was  furnished  with  a  double 
arm  or  rod — that  is,  one  extending  on  each  side  of  the  car, 
as  is  in  some  instances  provided)  whether  the  car  so  coupled 
that  it  could  not  be  uncoupled  on  the  side  to  which  the 
brakeman  would  naturally  be  sent  to  uncouple  it  without  the 
necessity  of  a  man  going  between  the  cars  for  the  purpose  of 
uncoupling,  but  that  it  could  be  uncoupled  by  operating 
the  coupling  rod  on  the  adjoining  car  by  the  brakeman  go- 
ing around  the  end  of  the  train  in  order  to  reach  it  on  the 
other  side,  or  by  his  climbing  up  the  car,  crossing  over  the 
top  and  climbing  down  on  the  other  side,  was,  in  the  con- 
templation of  the  law,  one  which  "could  be  uncoupled  with- 
out the  necessity  of  a  man  going  between  the  cars." 

It  was  contended  by  the  defendant  that  in  construing 
this  statute  we  must  take  into  consideration  the  fact  that 
it  is  a  penal  fftatute,  and  therefore  should  be  strictly  con- 
strued, while  the  plaintiff   insisted  that    it    is    a    remedial 


APPENDIX    G.  707 

statute,  and  is  enacted  for  the  protection  of  the  lives  and 
limbs  of  the  numerous  railroad  employees  and  therefore 
should  be  liberally  construed.  We  feel  justified  in  giving  a 
sufficiently  liberal  construction  to  the  language  employed  to 
enable  the  statute  to  conserve  the  ends  evidently  intended 
by  the  legislators,  and  while  it  may  not  be  successfully  main- 
tained that  a  car  coupled  as  above  renders  it  absolutely  ne- 
cessary for  a  man  to  go  between  the  ends  of  the  cars  to 
uncouple  it,  our  knowledge  of  the  manner  in  which  freight 
trains  of  our  interstate  railroads  are  handled  convinces  us 
that  it  is  reasonably  necessary  for  the  man  to  go  between 
the  ends  of  the  cars  to  uncouple  such  a  car.  There  is  no 
assurance  that  the  conditions  of  the  track  or  the  length 
of  the  train  would  be  such  at  the  time  that  the  car  might 
need  to  be  uncoupled  that  the  brakeman  could  go  around 
the  end  of  a  train  to  the  operating  rod  on  the  other  side  of 
the  adjoining  car  and  effect  the  uncoupling  in  the  time  al- 
lowed for  such  purpose,  or  that  the  condition  of  the  car 
or  the  adjoining  car  would  be  such  that  he  could  climb  over 
the  top  of  the  car  and  down  the  other  side,  even  if  sufficient 
time  were  allowed,  without  incurring  fully  as  much  danger 
to  his  person  as  by  stepping  in  between  the  ends  of  the 
cars  and  effecting  the  uncoupling  by  hand.  It  is  reasonably 
certain  that  in  a  great  majority  of  cases,  if  not,  in  fact,  in- 
variably, the  brakeman,  confronted  with  the  necessity  of 
adopting  one  of  these  three  courses,  would  go  in  between 
the  ears  and  effect  the  uncoupling  by  hand.  We  consider 
that  hauling  a  car  with  a  coupling  in  such  damaged  or  im- 
perfect condition  as  to  present  the  necessity  of  this  election 
to  the  employee  is  a  violation  of  the  act  in  the  ordinary 
meaning  of  the  words  used,  according  to  the  true  intent 
of  the  legislators. 

Judgment  is  rendered  for  the  plaintiff  in  accordance 
with  the  prayer  of  the  complaint  in  the  four  several  causes 
of  action. 


708  FEDERAL   SAPETY   APPLIANCE   ACT. 

UNITED  STATES  OF  AMERICA  v.  EL  PASO  &  SOUTH- 
WESTERN RAILROAD  COMPANY  AND  EL  PASO 
&  SOUTHWESTERN  RAILROAD  COMPANY 
OF  TEXAS. 

(U.  S.  District  Court,  Western  District  of  Texas.) 

1.  The  allegation  that  this  action  was  brought  "upon  suggestion  of  the 

Attorney-General  of  the  United  States,  at  the  request  of  the  Inter- 
state Commerce  Commission,  and  upon  information  furnished  by 
said  Commission,"  substantially  complies  with  section  6  of  the  act 
of  March  2,  1893,  as  amended,  when  it  appears  that  such  informa- 
tion was  furnished  to  the  Commission  by  inspectors  of  safety  ap- 
pliances, who  are  acting  under  oath  of  office. 

2.  In  stating  a  cause  of  action  to  recover  a  penalty  under  the  Safety 

Appliance  Acts,  it  is  not  necessary  that  there  be  an  allegation  that 
the  acts  complained  of  were  intentionally  and  willfully  done. 

3.  The  highest  degree  of  care  in  inspection  and  making  such  repairs  as 

that  inspection  disclosed  is  not  in  any  way  a  defense  in  an  action 
brought  to  recover  a  penalty  for  violation  of  the  Safety  Appliance 
Act. 

Charles  A.  Boynton,  United  States  Attorney,  and 
Luther  M.  Walter,  special  assisto/nt  United  States  attorney, 
for  the  United  States. 

Patterson,  Buckler  &  Woodson  and  Hawkins  & 
Franklin,  for  the  defendants. 

The  following  pleading  was  filed  by  the  defendants: 

Now  come  the  defendants  in  the  above-styled  cause  and 
say  that  they  are  common  carriers  engaged  in  commerce  by 
railroad  in  the  Territories  of  Arizona  and  New  Mexico  and 
in  the  State  of  Texas,  and  they  except  specially  to  the  com- 
plaint of  the  plaintiff  filed  herein  for  the  reason  that  the 
same  is  not  verified  as  required  by  the  provisions  of  section 
6  of  the  act  of  .March  2,  1893,  and  amended  by  the  act  of 
April  1,  1896  (Chapter  87,  29  Stat.  L.,  p.  85). 

2d.  Said  defendants  except  specially  to  said  complaint 
for  the  reason  that  it  does  not  appear  from  the  same  that 


APPENDIX    G.  709 

duly  verified  information  respecting  the  matters  therein  al- 
leged was  ever  filed  with  the  United  States  District  Attorney. 

3rd.  Defendants  except  specially  to  the  first  count  in 
said  complaint  for  the  reason  that  it  is  not  alleged  that 
the  acts  therein  complained  of  were  intentionally  or  willfully 
done. 

4th.  And  defendants  except  specially  to  the  second 
count  in  said  complaint  contained  for  the  reason  that  it  is 
not  alleged  that  the  acts  therein  complained  of  were  inten- 
tionally or  willfully  done. 

5th.  And  defendants  except  specially  to  the  third  count 
in  said  complaint  contained  for  the  reason  that  it  is  not  al- 
leged that  the  acts  therein  complained  of  were  intentionally 
or  willfully  done. 

6th.  Defendants  except  specially  to  said  complaint  for 
the  reason  that  the  same  does  not  show  that  it  was  filed 
in  any  way  in  accordance  with  or  under  the  provisions  of 
section  6  of  the  act  of  March  2,  1893,  and  amended  by  the 
act  of  April  1,  1896    (chapter  87,  29  Stat.  L.,  p.  85). 

7th.  Defendants  except  specially  to  said  complaint  for 
the  reason  that  it  does  not  appear  from  the  same  that  this 
court  has  jurisdiction  over  this  cause. 

8th.  And  further  answering,  defendants  say  that  they 
are  not  guilty  of  the  wrongs  and  acts  complained  of  in  this 
cause,  and  they  deny  all  and  singular  the  allegations  in  the 
plaintiff's  complaint  contained  and  of  this  they  put  them- 
selves upon  the  country. 

9th.  And  for  further  answer  in  this  behalf,  these  de- 
fendants say  that  if  said  grab  irons,  couplers,  and  appliances 
mentioned  in  the  petition  of  the  plaintiff  were  in  anywise 
defective,  insufficient,  or  not  in  conformity  with  the  laws 
of  the  United  States  that  then  such  facts  w^ere  not  within 
the  knowledge  of  these  defendants  or  either  of  them,  nor 
could  the  same  have  been  discovered  by  these  defendants  by 
the  highest  degree  of  care  in  inspection;  that  immediately 
before  using  the  said  cars  mentioned  in  said  petition,  these 


710  FEDERAL  SAFETY  APPLIANCE  ACT. 

defendants  gave  the  said  cars  a  rigorous  inspection  and  used 
the  highest  degree  of  care  and  diligence  to  discover  any  de- 
fective condition  about  the  same,  or  any  grab  irons,  couplers, 
or  other  appliances  thereof,  and  that  by  the  use  of  such 
care  they  did  not  and  could  not  discover  the  same;  that  if 
said  cars  were  moved  as  alleged  by  plaintiff,  which  defend- 
ants deny,  when  any  of  the  same,  their  appliances,  couplers 
or  grab  irons  were  in  a  defective  condition,  that  then  the 
same  was  done  by  defendants  inadvertently,  without  the 
knowledge  of  either  of  them,  and  without  the  consent  of 
either  of  them,  all  of  which  these  defendants  are  ready  to 
verify. 

jMaxey,  District  Judge,  rendered  the  following  judgment : 

On  this  the  8th  day  of  April,  A.  D.  1907,  came  on  for 
trial  by  regular  call  the  above  numbered  and  entitled  cause, 
whereupon  came  the  plaintiff  and  the  defendants,  by  their 
respective  attorneys,  and  came  on  to  be  heard  the  demurrers 
and  special  exceptions  of  defendants,  and  the  court  having 
heard  and  considered  the  same  is  of  the  opinion  that  the 
same  are  not  well  taken  and  that  the  law  is  not  with  the 
defendants  in  the  matter  of  the  exceptions;  and  it  is  there- 
fore ordered  by  the  court  that  all  of  said  exceptions  be,  and 
the  same  are  hereby,  overruled,  to  which  action  of  the  court 
the  defendants  excepted;  and  also  came  on  to  be  heard  and 
considered  by  the  court  the  exception  and  demurrer  filed  by 
the  plaintiff  to  the  9th  paragraph  of  the  defendants'  answer 
herein,  and  the  court  having  heard  and  considered  the  same 
is  of  the  opinion  that  the  same  is  well  taken  and  that  the 
laAV  is  with  the  plaintiff  in  the  matter  of  said  exception ;  and 
it  is  therefore  ordered  by  the  court  that  the  said  exception 
be,  and  the  same  is  hereby,  sustained,  to  which  ruling  of  the 
court  the  defendants  excepted. 

Whereupon,  upon  motion  of  the  district  attorney,  it  is 
ordered  by  the  court  that  this  cause  be,  and  the  same  is 
hereby,  dismissed  as  to  the  defendant  El  Paso  &  Southwest- 
ern  Railroad   Company. 


APPENDIX    G.  711 

Whereupon  both  parties  announce  ready  for  trial,  and 
a  jury  having  been  expressly  waived  by  written  stipulation 
filed  herein,  the  matters  of  fact  as  well  as  of  law  were  sub- 
mitted to  the  court,  and  the  court,  after  hearing  the  plead- 
ings read,  considering  the  evidence  introduced  and  the  argu- 
ment of  counsel,  is  of  the  opinion,  and  so  finds,  that  the  de- 
fendant El  Paso  &  Southwestern  Railroad  Company  of  Texas, 
a  corporation,  is  guilty  of  violations  of  the  act  of  Congress 
known  as  the  Safety  Appliance  Act,  as  set  forth  and  charged 
in  the  three  counts  contained  in  plaintiff's  petition,  and  is 
liable  to  plaintiff,  the  United  States  of  America,  in  the  sum 
of  three  hundred  ($300)  dollars. 

It  is  therefore  ordered,  adjudged,  and  decreed  by  the 
court  that  the  plaintiff,  the  United  States  of  America,  do 
have  and  recover  of  and  from  the  defendant,  El  Paso  &  South- 
western Railroad  Company  of  Texas,  the  sum  of  three  hun- 
dred ($300)  dollars,  with  interest  thereon  from  this  date 
at  the  rate  of  six  per  cent,  per  annum,  together  with  all  costs 
in  this  behalf  incurred  and  expended,  for  which  execution 
may  issue. 

To  which  judgment  and  ruling  of  the  court  the  defend- 
ant El  Paso  &  Southwestern  Railroad  Company  of  Texas 
in  open  court  excepted. 


UNITED  STATES  v.  WABASH  RAILROAD  COMPANY. 

[In  the  District   Court  of  the  United  States   for  the  Eastern  District 

of  Illinois.] 

[Affirmed  as  to  third  count  and  reversed  as  to  first.     172  Fed.  864.] 

(Syllabus  by  the  court.) 

1.  In  an  action  brought  to  recover  the  penalty  provided  in  section  6 
of  the  Safety  Appliance  Act  for  violation  of  that  statute  it  is  no 
defense  to  show  that  defendant  has  used  diligence  or  care  of  any 
degree  to  keep  the  cars  in  a  reasonably  safe  condition.  The  statute 
commands  a  duty.  The  defendant  must  perform  that  duty,  and 
it  moves  cars  in  a  defective  condition  at  its  peril. 


712  FEDERAL  SAFETY  APPLIANCE  ACT. 


STATEMENT  OF  FACTS. 

The  Interstate  Commerce  Commission  lodged  with  the 
United  States  attorney  information  showing  violations  of 
the  safety  appliance  law  by  the  Wabash  Railroad  Company. 
The  declaration  was  in  four  counts,  each  count  charging  a 
violation  of  section  2  of  the  statute,  the  allegation  being  that 
the  couplers  were  out  of  repair  and  inoperative.  At  the  trial 
defendant  offered  evidence  tending  to  show  diligence  and 
care  in  keeping  the  cars  in  a  reasonably  safe  condition. 

William  E.  Trautmann,  United  States  attorney,  George 
A.  Crow,  assistant  United  States  attorney,  and  Ulysses 
Butler,  special  assistant  United  States  attorney,  for  the 
United  States. 

Bruce  Campbell,  for  defendant. 

(ISlovemler  19,  1901.) 

Francis  M.  Wright,  District  Judge  (charging  jury)  : 

The  defendant  in  this  case  is  charged  by  the  United  States 
with  having  violated  what  is  commonly  known  as  the  Safety 
Appliance  Act,  an  act  of  Congress  with  reference  to  that 
subject,  in  four  counts.  This  law  was  enacted  for  the  pur- 
pose of  securing  the  safety  of  persons  engaged  in  operating 
trains  in  interstate  traffic,  and  section  2  provides,  be- 
ing the  section  under  which  this  declaration  is  framed,  that — 
"On  and  after  the  1st  day  of  January,  1898,  it  shall  be  un- 
lawful for  any  common  carrier  to  haul  or  permit  to  be  hauled 
or  used  on  its  line  any  car  used  in  moving  interstate  traffic 
not  equipped  with  couplers  coupling  automatically  by  impact, 
and  wliifli  can  be  uncoupled  without  the  necessity  of  men 
going  between  the  ends  of  the  cars." 

Now  if  you  believe  from  the  evidence  in  this  case  that 
the  engine  mentioned  in  the  first  count,  I  think  it  is,  of  the 


APPENDIX    G.  713 

declaration  was  used  in  moving  interstate  traffic,  and  that 
it  was  not  equipped  with  couplers  coupling  automatically 
by  impact,  and  which  could  be  uncoupled  without  the  neces- 
sity of  men  going  between  the  ends  of  the  cars,  then  you 
will  find  the  defendant  guilty  on  that  count.  And  so  it  is  with 
reference  to  all  the  other  three  counts  in  the  declaration.  If 
you  believe  from  the  evidence  in  the  case  that  the  cars,  one 
or  all  of  them,  were  used  in  moving  interstate  traffic,  and 
that  they  were  not  equipped  with  couplers  coupling  automatic- 
ally by  impact,  and  which  could  be  uncoupled  without  the 
necessity  of  men  going  between  the  ends  of  the  cars,  you  will 
find  the  defendant  guilty  on  all  or  any  of  the  counts  where 
you  so  believe.  You  have  heard  the  testimony  of  the  witnesses 
upon  this  subject.  The  witnesses  for  the  Government  have 
testified  that  the  couplers  were  so  out  of  order  that  they 
could  not  be  coupled  without  a  man  going  between  the  cars 
for  that  purpose.  Now  if  you  believe  from  the  evidence  that 
is  true,  and  if  you  further  believe  from  the  evidence  that  the 
ears  were  used  in  moving  interstate  traffic,  then  you  will 
find  the  defendant  guilty. 

The  testimony  of  the  defendant's  witnesses  as  to  the 
inspection  of  the  cars  was  submitted  here  for  the  purpose 
of  tending  to  show,  as  far  as  in  your  judgment  it  does  tend 
to  show,  that  the  defendant's  cars  were  in  good  order.  The 
mere  fact  that  the  defendant  had  used  diligence  or  care  to 
keep  the  cars  in  a  reasonably  safe  condition  is  not  a  question 
before  you.  That  is  no  defense  to  this  suit.  This  statute  is 
commanding,  and  requires  the  defendant  at  its  peril  to  keep 
the  couplers  in  such  condition  that  the  men  whose  business 
it  is  to  couple  them  will  not  be  required  to  go  between  the 
cars  to  do  it ;  and  if  you  believe  from  all  the  evidence  in 
this  case  that  they  were  so  out  of  order  that  they  could  not 
be  coupled  without  men  going  between  the  cars  to  do  the 
coupling,  then  the  defendant  would  be  guilty  under  this 
declaration,  and  you  will  so  find.  That  is  about  all  the 
law  and  the  evidence  there  is  upon  this  subject  in  this  case. 


714  FEDERAL    SAFETY    APPLIANCE    ACT. 

You  have  heard  the  testimony  of  all  the  witnesses,  and  you 
are  the  judges  of  the  credibility  of  all  the  witnesses  and  of 
what  the  evidence  proves,  and  you  must  determine  the  case 
solely  upon  the  evidence  in  the  case.  If  you  find  the  defend- 
ant guilty,  you  will  say:  "We,  the  jury,  find  the  defendant 
guilty  on  the  first,  second,  third  and  fourth  counts  of  the 
declaration."  You  may  find  the  defendant  guilty  on  some 
of  the  counts  and  not  guilty  on  the  others.  In  that  case  the 
form  of  your  verdict  will  be :  "  We,  the  jury,  find  the  defend- 
ant guilty"  on  whatever  number  of  counts  you  do  find  the 
defendant  guilty,  and  "not  guilty"  on  whatever  you  find 
the  defendant  not  guilty.  If  you  find  the  defendant  not 
guilty,  you  will  say:  "We,  the  jury,  find  the  defendant  not 
guilty." 

There  seems  to  be  no  dispute  as  to  these  cars,  as  to  the 
fact  that  they  were  engaged  in  interstate  commerce.  That 
question  is  hardly  necessary  for  you  to  consider  or  necessary 
for  me  to  submit  to  you.  There  is  no  dispute  about  that. 
Interstate  commerce,  as  you  understand,  of  course,  is  traffic 
between  one  state  and  another  state — shipments  from  one 
state  to  another  state.     That  is  interstate  traffic. 


THE  UNITED  STATES  v.  PACIFIC  COAST  RAILWAY 

COMPANY. 

(In  the  District  Court  of  the  United  States  for  the  Southern  District 
of  California. ) 

[173  Fed.  453.     Alhrmed,  173  Fed.  44S.] 

(Syllabus  by  the  court.) 

i.  Under  the  Federal  Safety  Appliance  Acts,  in  order  to  recover  the 
statutory  penalty  provided  for  in  section  0  thereof,  the  United 
States  must  prove  (1)  tliat  the  defendant  at  the  times  mentioned 
in  the  comjjlaint  was  a  common  carrier  by  railroad  engaged  in 
interstate  commerce;  (2)  tliat  it  hauled,  or  permitted  to  be  hauled 
over  its   line,  th.e  locomotives,   trains   and  cars   mentioned    in   the 


APPENDIX    G.  715 

several  counts  of  the  complaint;  (3)  that  the  locomotives,  trains 
and  cars  were  not  provided  with  the  equipment  required  by  the 
statute. 
2.  A  shipment  from  a  point  witliout  tlio  State  of  California  was  con- 
signed to  San  Jose,  in  said  State.  Before  the  shipment  reached 
California  and  while  in  transit,  the  consignee,  by  an  agreement  with 
one  of  the  carriers,  changed  the  destination  from  San  Jos6  to  Ca- 
reaga.  Held,  That  the  traffic  being  carried  from  San  Jose  to  Ca- 
reaga  was  interstate.  Gulf,  Colorado  &  Santa  Fe  v.  Texas,  204  U. 
S.,  403,  distinguished. 

Oscar  Lawler,  United  States  attorney;  Aloysius  I.  Mc- 
CoRMiCK,  assistant  United  States  attorney,  and  Roscoe  F. 
Walter,  special  assistant  United  States  attorney,  for 
plaintiff. 

James  A.  Gibson  and  George  W.  Towle,  for  defendant. 

Decided  June  13,  1908. 

Wellborn,  District  Judge  (charging  jury)  : 

There  being  no  conflict  whatever  in  the  evidence  in  this 
case,  the  parties  have  submitted  motions  respectively  for 
peremptory  instructions.  Taking  them  up  in  the  order  in 
which  they  have  been  submitted,  or  in  the  order  in  which 
they  were  presented,  the  defendant  asks  the  court  to  peremp- 
torily instruct  the  jury  to  return  a  verdict  in  favor  of  the 
defendant  on  all  the  counts  in  the  complaint.  The  plaintiff 
asks  that  the  court  peremptorily  instruct  the  jury  to  return 
a  verdict  in  its  favor  on  all  the  counts  of  the  complaint,  ex- 
cepting the  eleventh  and  twenty-third,  being  duplicates  of 
the  ninth  and  twenty-second  counts. 

These  two  motions  are  the  matters  which  call  on  me  now 
for  immediate  disposition,  and  of  course  the  disposition  that 
I  make  of  these  motions  will  determine  the  case,  because  the 
jury  will  then  be  instructed  to  find  or  return  a  verdict  in 
accordance  with  the  conclusions  which  I  announce. 

I  may  say,  before  taking  up  the  merits  of  these  motions, 
that  it  is  obvious,  not  only  to  the  court,  but  even  to  a  casual 


716  FEDERAL   SAFETY    APPLIANCE   ACT. 

observer  of  the  progress  of  this  trial,  that  counsel  both  for 
the  plaintiff  and  for  the  defendant  have  made  their  researches 
into  the  law  of  the  case  with  great  industry,  and  the  presenta- 
tion of  their  respective  views  has  been  marked  by  uncommon 
ability.  If  I  had  no  jury  in  the  box  and  could  take  the  case 
under  advisement  for  the  purpose  of  preparing  an  opinion, 
I  should  like  to  review  these  questions  for  the  reasons  which 
I  have  just  indicated;  but  this  is  impracticable,  and  I  shall 
not  undertake  to  do  any  more  than  to  announce  my  conclu- 
sions, with  such  reference  to  the  law  and  the  facts  in  the 
case  as  may  make  the  announcement  intelligible. 

The  first  Safety  Appliance  Act  was  passed  in  1893,  and 
this  act  as  amended  April  1,  1896,  contains,  among  others, 
the  following  provisions,  which  are  applicable  to  the  case 
at  bar.    The  first  section  of  the  original  act  reads  as  follows: 

Be  it  enacted  hy  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America,  in  Congress  assemMed,  That  from  and  after 
the  first  day  of  January,  eighteen  hundred  and  ninety-eiglit,  it  shall 
be  unlawful  for  any  common  carrier  engaged  in  interstate  commerce  by 
railroad  to  use  on  its  line  any  locomotive  engine,  in  moving  interstate 
traffic,  not  equipped  with  a  power  driving-wheel  brake  and  appliances 
for  operating  tlic  train-brake  system,  or  to  run  any  train  in  such  traffic 
after  said  date  that  has  not  a  sufficient  number  of  cars  in  it.  so  equipped 
with  power  or  train  brakes  that  the  engineer  on  the  locomotive  drawing 
such  train  can  control  its  speed  without  requiring  the  brakeman  to  use 
the  common  hand  brake  for  that  purpose. 

I  am  reading  these  various  provisions  because  I  think 
it  is  well  that  the  jury,  as  well  as  counsel,  should  understand 
the  ruling  I  am  going  to  make.  The  second  section  reads  as 
follows : 

Rec.  2.  That  on  and  after  the  first  day  of  January,  eighteen  hun- 
dred and  ninety-eiglit,  it  sliall  be  unlawful  for  any  such  common  car- 
rier to  haul,  or  permit  to  be  hauled  or  used  on  its  line,  any  car  used 
in  moving  int<'rstate  traffic  not  ('(|uipped  with  couplers  coupling  auto- 
inaticiilly  liy  impact,  and  wliicli  can  1k'  uncoupled  without  the  necessity 
of  men  going  between  the  ends  of  the  cars. 

Section  6,  as  amended  in  1896: 

That  any  sncli  coiniiioii  carrier  using  any  locomotive  engine  running 
any  train,  or  liauling  or  permitting  to  be  hauled  or  used  on  its  line  any 
car  in  violation  of  any  of  the  provisions  of  this  act,  shall  lie  liable  to  a 


APPENDIX    G.  717 

penalty  of  one  hundred  dollars  for  each  and  every  such  violation,  to  be 
recovered  in  a  suit  or  suits  to  be  brought  by  the  United  States  District 
Attorney  in  the  District  Court  of  the  United  States  having  jurisdiction 
in  the  locality  where  such  violation  shall  have  been  committed;  and  it 
shall  be  the  duty  of  such  District  Attorney  to  bring  such  suits,  upon 
duly  verified  information  being  lodged  with  him  of  such  violations  hav- 
ing occurred,  etc. 

The  act  was  further  amended  March  2,  1903,  and  this 
last  amendment  provided,  among  other  things,  in  section  1 
of  the  act  that  the  provisions  and  requirements  of  the  act 
entitled  "An  act  to  promote  the  safety  of  employees  and 
travelers  upon  railroads,  by  common  carriers  engaged  in  inter- 
state commerce,  approved  IMarch  2,  1893,  and  amended  April, 
1896,  shall  be  held  to  apply  to  all  common  carriers  by  rail- 
road in  the  Territories  and  in  the  District  of  Columbia,  and 
shall  apply  in  all  cases,  whether  or  not  the  couplers  brought 
together  are  of  the  same  kind,  make,  or  type ;  and  the  pro- 
visions and  requirements  hereof,  and  of  said  acts,  relating  to 
train  brakes,  automatic  couplers,  grab  irons,  and  the  height 
of  draw  bars,  shall  be  held  to  apply  to  all  trains,  locomotives, 
tenders,  ears,  and  similar  vehicles  used  on  any  railroad  en- 
gaged in  interstate  commerce,  and  in  the  Territories  and  Dis- 
trict of  Columbia,  and  to  all  other  locomotives,  tenders,  cars, 
and  similar  vehicles,  used  in  connection  therewith,  excepting 
those  trains,  cars,  and  locomotives  exempted  by  the  provisions 
of  section  6  of  said  act  of  March  2,  1893,  as  amended  by  the 
act  of  April  1,  1896,  or  which  are  used  upon  street  railways." 

I  am  of  opinion  that  that  part  of  the  amendatory  act 
of  1903  which  provides,  ''and  the  provisions  and  require- 
ments hereof  and  the  said  act  relating  to  train  brakes,  au- 
tomatic couplers,  grab  irons,  and  the  height  of  drawbars, 
shall  be  held  to  apply  to  all  trains,  locomotives,  tenders,  cars, 
and  similar  vehicles  used  on  any  railroad  engaged  in  inter- 
state commerce,  and  to  all  other  locomotives,  tenders,  cars, 
and  similar  vehicles,  used  in  connection  therewith,"  broadens 
the  original  act  of  1893  so  as  to  make  its  requirements  con- 
cerning train  brakes,  automatic  couplers,  grab  irons,  and  the 
height    of    drawbars  apply    not    only  to  trains,  locomotives, 


718  FEDERAL    S.APETY    APPLIANCE    ACT. 

tenders,  and  cars  employed  in  the  movement  of  interstate 
traffic,  but  to  all  trains,  locomotives,  tenders,  and  cars  used 
on  any  railroad  engaged  in  interstate  commerce.  In  other 
words,  for  the  Government  to  recover  under  the  amendatory 
act  of  1903,  it  is  not  necessary,  as  it  was  under  the  original 
act  of  1893,  to  show  that  the  car  with  the  defective  equip- 
ment was  employed  in  interstate  movement  at  the  time  this 
defect  was  discovered,  but  it  is  only  necessary  to  show  that 
said  car  was  hauled  over  the  line  or  used  by  a  railroad  en- 
gaged in  interstate  commerce.  Z7.  S.  v.  Chicago,  31.  tC'  St. 
P.  By.  Co.,  149  Fed.,  436.  The  case  just  cited  is  the  case 
which  was  read  by  Judge  Gibson,  and  which  had  not  been 
called  to  my  attention  previously ;  but  the  views  which  I  have 
announced  are  in  complete  accord  with  the  views  expressed 
by  Judge  JMcPherson  in  the  case  which  I  have  just  cited. 
Unless  the  amendatory  act  is  so  construed,  those  parts  of  it 
last  quoted  are  entirely  without  effect  and  useless. 

To  further  illustrate  the  effect  of  this  amendatory  act, 
I  will  read  the  following  statement  by  a  Member  of  the  House 
of  Representatives  while  that  body  had  the  act  under  consi- 
derations : 

]\Ir.  Wanger:  ]\Ir.  Speaker,  the  purpose  of  this  act  is  to  make  more 
efficient  the  provisions  of  the  act  of  March  2,  1893,  for  the  promotion 
of  tlie  safety  of  employes  upon  railways.  It  has  been  held  by  some 
courts  that  the  tender  of  a  locomotive  is  not  a  car,  and  is  therefore  not 
affected  by  the  provisions  of  the  act.  It  has  also  been  held  that  the 
act  only  aj)plies  to  cars  in  interstate  movement,  and  cars  are  very  fre- 
quently, although  generally  designed  for  and  used  in  the  movement  of 
interstate  traffic,  in  use  which  is  not  interstate  movement  that  requires 
the  services  of  operatives  u])on  them.  Whenever  an  action  for  damages 
is  brought  by  reason  of  the  death  or  injury  of  a  railroad  employe,  of 
course  every  defense  is  made;  and,  although  the  car  may  not  be  equipped 
as  directed  by  the  act  of  Congress,  yet  that  direction,  as  it  stands,  only 
applies  when  the  car  is  being  used  in  the  movement  of  interstate  com- 
merce; therefore  the  burden  is  on  the  plaintifT  in  every  such  action  to 
establish  tliat  fact,  and  is  frecjueully  an  impossibility,  because  fre- 
quently the  injury  or  death  does  not  happen  wiien  the  car  is  so  engaged 
in  interstate  commerce. 

It  is,  therefore,  of  tlie  liigliest  importance  to  make  the  act  of  Con- 
gress, as  everyl)o(ly  su])posed  it  would  be.  efl'ective,  so  far  as  we  have 
the  power  and  autliority,  for  the  prf)tection  of  employes  by  requiring 
the  equipment  referred  to  in  tlie  act  on  all  cars  used  on  railroads  en- 
gaged in  inUirstate  commerce.     That  is  the  purpose  of  the  first  section 


APPENDIX    G.  719 

of  the  bill.  The  purpose  of  the  second  section  is  to  require  a  more  gen- 
eral and  iinifi)rni  use  of  air  and  air  brakes,  so  as  to  have  less  need  for 
the  operation  of  hand  brakes.  The  present  act,  as  I  recollect  it.  is  that 
there  must  be  suflicient  air-braking  apparatus  used  to  enable  the  engi- 
neer to  control  the  train.  That,  of  course,  dill'ers,  perhaps,  in  the  judg- 
ment of  every  engineer.  Therefore  it  seems  ajipropriate  that  there 
should  be  a  certain  percentage  of  the  cars  of  every  train  required  to  be 
op(Mated  by  air  brakes,  whether  it  is  actually  essential  for  tli3  proper 
control  of  the  train  or  not. 

To  the  same  effect,  the  Interstate  Commerce  Commission, 
in  its  Seventeenth  Annual  Report,  page  84,  after  the  act  had 
become  a  law: 

The  necessity  of  showing  that  a  car  was  engaged  in  interstate  com- 
merce was  another  difhculty  in  the  way  of  enforcing  the  law.  It  was 
necessary  to  get  at  the  billing  showing  destination  of  cars,  and  to  prove 
in  each  case  that  the  car  complained  of  was  actually  moving  or  used 
in  interstate  commerce  at  the  time  its  defect  was  discovered.  The 
amendment  in  question  has  obviated  this  difficulty.  The  law  now  ap- 
plies to  all  equipment  on  the  lines  of  carriers  engaged  in  interstate 
commerce,  without  regard  to  the  service  in  which  it  is  used. 

I  am  of  the  opinion  that  under  said  acts  as  above  ex- 
plained there  were  only  three  things  which  the  Government 
must  prove  in  order  to  recover: 

(1)  That  the  defendant,  at  the  timos  mentioned  in  the 
complaint,  was  a  common  carrier  by  railroad,  engaged  in 
interstate  commerce; 

(2)  That  it  hauled,  or  permitted  to  be  hauled,  over  its 
lines  the  locomotives,  trains,  and  cars  mentioned  in  the  several 
counts  of  the  complaint; 

(3)  That  said  trains,  locomotives,  and  cars  Avere  not 
provided  with  the  equipment  required  by  said  act. 

There  is  no  controversy  as  to  the  existence  of  the  second 
and  third  ingredients  of  the  plaintiff's  causes  of  action,  nor  is 
there  any  controversy  that  the  defendant  was  and  is  a  com- 
mon carrier  by  railroad.  The  only  issue  between  the  defend- 
ant and  the  plaintiff  is  as  to  whether  or  not  the  proof  shows 
that  it  was  engaged,  at  the  times  mentioned  in  the  complaint, 
in  interstate  commerce. 

There  is  no  confiiet  whatever  in  the  evidence  relating  to 


720  FEDERAL   SAFETY    APPLIANCE    ACT. 

this  issue,  and  from  such  evidence,  following  the  principles 
declared  in  United  States  v.  Colorado  Northwestern  R.  R.  Co., 
157  Fed.,  321,  some  of  which  had  been  previously  enunciated 
in  the  Daniel  Ball  case,  10  Wall.,  557,  I  am  satisfied  that  the 
defendant  was  engaged  at  the  said  times  in  interstate  com- 
merce. The  letter  of  January  25  of  the  consignor,  the  National 
Tube  Company,  to  the  general  freight  agent  of  the  Southern 
Pacific  Company,  asking  that  the  destination  of  the  shipments 
therein  named  be  changed  on  their  arrival  at  the  place  to 
which  they  were  originally  consigned,  and  the  direction  con- 
tained in  the  letter  or  traingram.  signed  ''J.  INI.  Brewer,"  of 
date  January  29,  written  more  than  a  month  before  either  of 
said  shipments  arrived  at  San  Jose,  and  some  time  before 
they  had  even  reached  California,  clearly  distinguishes  the 
ease  from  Gulf,  Colorado  &  Santa  Fe  R.  R.  Co.  v.  Texas,  204 
U.  S.,  403.  I  may  say  here  that  of  course  the  actual  physical 
diversion  of  the  shipments  was  not  and  could  not  have  been 
made  until  the  arrival  of  the  cars  at  San  Jose,  or  Los  Angeles, 
or  ]\Iojave,  whichever  may  have  been  the  destination ;  but 
the  agreement  between  the  National  Tube  Company,  the 
consignor,  and  the  Southern  Pacific  Company,  as  evidenced 
by  the  letters  which  I  have  just  referred  to — and  the  South- 
ern Pacific  Company  was  one  of  the  carriers  who  were  parties 
to  the  contract  for  the  interstate  shipment — this  agreement 
between  the  consignor  and  the  Southern  Pacific  Company 
was  consummated  when  the  traingram  was  sent  by  the 
Southern  Pacific  Company  pursuant  to  the  request  of  the 
National  Tube  Company,  the  consignor,  to  the  local  agent  of 
the  Southern  Pacific  Company  at  San  Jose.  After  that  order 
had  been  sent  to  the  agent  at  San  Jose  it  was  as  though  the 
original  contract  had  read  that  Careaga,  or  whatever  was 
the  point  to  which  it  was  to  be  diverted,  was  the  ultimate 
destination.  Tn  other  words,  the  original  contract  was  so 
changed  as  to  substitute  Careaga,  or  the  other  points  on 
the  defendant's  local  line,  for  the  points  on  the  Southern 


APPENDIX    G.  721 

Pacific  given  in  the  waybill  as  it  was  originally  executed.  I 
might  say  that  there  is  another  fact  that  adds  some  strength, 
probably,  to  this  conclusion,  although  the  conclusion  would 
have  been  reached  without  it — that  the  testimony  of  Mr. 
Garrett,  I  think  it  is,  showed  that  the  National  Tube  Com- 
pany furnished  and  provided  the  local  agent  at  San  Jose 
with  money  to  prepay  the  transportation  beyond  that  point 
to  the  new  destination  under  the  diversion  order. 

Recurring  now  to  the  case  of  Gulf,  Colorado  &  Santa  Fe 
Railroad  Company  v.  Texas,  204  U.  S.,  403,  the  court,  at 
page  412,  said,  among  other  things : 

In  other  words,  the  transportation  which  was  contracted  for,  and 
which  was  not  changed  by  any  act  of  the  parties,  was  transportation 
of  the  corn  from  Hudson  to  Texarkana — that  is,  an  interstate  shipment. 

*  *  *  Neither  the  Harroim  nor  the  Hardin  company  changed,  or  of- 
fered   to   change,    the   contract   of    sliipnient   or    tlie    place    of    delivery. 

*  *  *  No  new  arrangement  having  been  made  for  transportation, 
the  corn  was  delivered  to  the  Hardin  Company  at  Texarkana.  What- 
ever may  have  been  the  thought  or  purpose  of  the  Hardin  Company  in 
respect  to  the  further  disposition  of  the  corn  was  a  matter  immaterial, 
so  far  as  the  completed  transportation  was  concerned. 

It  is  a  fair  inference  from  this  quotation  that  if  the 
original  contract  of  shipment  had  been  changed  by  the 
parties  so  as  to  substitute  Goldthwaite  for  Texarkana,  the 
decision  of  the  court  would  have  been  different ;  and  I  am 
of  opinion  that  the  changes  of  destination  shown  in  the  case 
at  bar  by  the  letters  above  mentioned  are  the  situations 
which,  it  is  to  be  inferred  from  the  language  of  the  Supreme 
Court  in  the  case  last  cited,  would  have  made  the  trans- 
portation there  involved  an  interstate  matter  and,  in  my 
opinion,  bring  the  case  at  bar  fully  within  United  States  v. 
Colorado  Northwestern  R.   R.   Co.,  surpra. 

From  the  views  above  expressed  as  to  the  law  of  the  case, 
there  being  no  conflict  in  the  evidence  relating  to  the  facts, 
it  follows  that  the  defendant's  motion  must  be  denied,  and 
the  plaintiff's  motion  for  peremptory  instructions  must  be 
allowed,  and  orders  to  that  effect  wdll  be  accordingly  entered. 


722  FEDERAL  SAFETY  APPLIANCE  ACT. 

UNITED    STATES   v.   WHEELING   AND   LAKE    ERIE 
RAILROAD   COMPANY. 

(In  the  District  Court  of  the  United  States  for  the  Northern  District 

of  Ohio.) 

[1G7  Fed.  198.] 

Decided  June  16,  1908. 

( Syllabus  by  the  court. ) 

1.  The   Safety  Appliance   Act  of   March  2,   1903,   amending   the   act  of 

March  2,  1893,  as  amended  April  1,  1896,  is  constitutional  and 
valid.     Employers'  Liability  cases    ( 207  U.   S.  463 ) ,  distinguished. 

2.  All  the  cars  used  by  a  railroad  engaged  in  interstate  commerce  in  the 

natural  course  of  their  use  are  instrumentalities  of  interstate  com- 
merce; whether  they  carry  interstate  traific  themselves  or  are 
hauled  in  a  train  which  contains  interstate  traffic,  such  cars  are 
impressed  with  an  interstate  character. 

3.  In  order  effectively  to  protect  the  employe  engaged  in  handling  a  car 

loaded  with  interstate  traffic,  Congress  lawfully  may  regulate  the 
appliances  used  on  every  car  upon  which  such  employe  is  employed. 

4.  It  is  not  necessary  that  the  petition  in  an*  action  to  recover  the  stat- 

utory penalty  under  the  Safety  Appliance  Act  allege  that  the  de- 
fect in  the  car  was  due  to  any  want  of  ordinary  care  upon  the  part 
of  the  defendant.      {Railway  Co.  v.  Taylor,  Admx.,  210  U.  S.  281.) 

5.  If  a  car  is  one  that  is  regularly  used  in  the  movement  of  interstate 

traffic,  and  is  at  the  time  involved  in  the  movement  of  a  train  con- 
taining interstate  traffic,  the  lading  of  the  car  is  wholly  immaterial. 

William  L.  Day,  United  States  attorney ;  Thomas  H.  Garry, 
assistant  United  States  attorney;  and  Luther  M.  Walter, 
special  assistant  United  States  attorney,  for  the  United 
States. 

Squire,  Sanders  &  Dempsey,  for  defendant. 

OPINION    ON    DEMURRER    TO    PETITION. 

Tayler,  D.  J.: 

The  petition  in  this  case,  in  twenty-three  causes  of  action, 
seeks  to  recover  from  the  defendant  penalties  for  alleged 
failures  to  ('(|uip  certain  cars  with  couplings  and  grab  irons,  as 
required  by  what  is  known  as  the  safety  appliance  act. 


APPENDIX    G. 


723 


The  jurisdictional  facts  alleged  in  order  to  bring  the  cars 
referred  to  within  the  embrace  of  the  Federal  act  are : 

1.  That  the  car  was  itself  at  the  time  used  in  interstate 
commerce,  being  loaded  with  some  kind  of  freight  originating 
outside  of  the  State  of  Ohio,  and  being  carried  within  it  or 
being  destined  to  some  point  outside  of  the  State;  or 

2.  That  it  was  a  car  which,  being  one  regularly  used  in  the 
movement  of  interstate  commerce,  w^as,  at  the  time  of  the 
violation,  being  hauled  in  a  train  containing  interstate  com- 
merce, one  car  in  the  train  with  it,  as,  for  example,  Illinois 
Central  35572,  containing  baled  hay  consigned  to  a  point 
within  the  State  of  West  Virginia. 

In  the  counts  referred  to  by  this  second  proposition  some 
of  the  cars  are  described  as  being  empty  and  some  as  being 
loaded,  but  it  is  not  charged  that  the  loaded  cars  contained 
interstate  traffic.  I  see  no  distinction,  so  far  as  this  case  is 
concerned,  between  the  two. 

It  is   objected — • 

1.  That  the  act  is  unconstitutional  under  the  rule  laid  down 
in  the  Employers'  Liability  cases,  207  U.  S.,  463. 

2.  That,  assuming  that  the  cars  were  originally  provided 
with  the  safety  appliances  which  the  law  requires,  it  does  not 
appear  that  the  condition  in  which  they  were  at  the  times 
named  in  the  petition  respectively,  was  due  to  any  want  of 
ordinary  care. 

3.  That  in  the  case  of  empty  cars,  or  cars  not  loaded  with 
interstate  commerce,  it  does  not  appear  that  they  were,  at 
the  time  of  the  existence  of  the  defects,  being  used  in  inter- 
state commerce. 

These  objections  will  be  taken  up  in  their  order: 
The  law  was  originally  passed  March  2,  1893,  and,  with  an 
amendment  or  two  later  adopted  and  unimportant,  so  far  as 
this  question  is  concerned,  an  amendment  was  passed  on 
the  2d  of  March,  1903.  which  provided  that  the  act  of  1893, 
with  its  amendments,  should  "be  held  to  apply  to  common 
carriers  by  railroads  in  the  territories  and  the  District  of 


724  FEDERAL  SAFETY  APPLIANCE  ACT. 

Columbia,  and  shall  apply  in  all  cases  whether  or  not  the 
couplers  brought  together  are  of  the  same  kind,  make,  or 
type,"  and  "shall  be  held  to  apply  to  all  trains,  locomotives, 
tenders,  cars,  and  similar  vehicles  used  on  any  railroad  en- 
gaged in  interstate  commerce." 

It  is  claimed  that  since  the  act  of  1903  undertakes  to  make 
the  act  of  1893  apply  to  trains,  locomotives,  and  so  forth,  used 
on  any  railroad  engaged  in  interstate  commerce,  it  extends 
the  operation  of  the  act  to  subjects  over  which  Congress  has 
no  control,  and  that  this  is  exactly  the  effect  of  the  decision 
of  the  Supreme  Court  in  the  Employers'  Liability  cases. 

]\Iany  answers  suggest  themselves  to  this  claim.  If  the  act 
of  1903  had  been  incorporated  in  the  original  act  of  1893, 
and  if  it  be  true  that  the  scope  which  the  act  covered  was 
larger  than  that  which  Congress  had  power  to  legislate  upon, 
and  in  consequence  of  that,  the  act  should  be  held  unconsti- 
tutional because  of  the  impossibility  of  separation  of  the 
unconstitutional  part  from  the  constitutional  part,  still  the 
contention  of  counsel  would  not  be  effective  in  this  case. 

We  have  here  the  act  of  1893  in  full  force  and  effect,  with 
its  provisions  in  no  wise  diminished  or  curtailed  by  the  act 
of  1903.  That  the  act  of  1903  is,  as  the  Supreme  Court  of 
the  United  States  declared  in  Johnson  v.  Railroad  Company, 
196  U.  S.,  1,  affirmative  and  declaratory,  and,  in  effect,  only 
construes  and  applies  the  former  act.  Now,  if  the  former  act 
is  construed  and  applied  by  a  later  act  (which,  of  course, 
involves  the  proposition  that  it  remains  unrepealed)  and  the 
later  act  is  unconstitutional,  in  that  it  undertakes  to  give 
the  former  act  a  wider  application  than  Congress  had  power 
to  give  to  it,  by  what  sort  of  reasoning  can  it  be  contended 
that  the  former  act  falls  to  the  ground  because  it  has  had 
plastered  upon  it  by  Congress  an  unconstitutional  construc- 
tion and  application?  The  mere  statement  of  this  proposi- 
tion carries  with  it  its  answer  and  exhibits  its  unreasonable- 
ness. 

But  much  more  may  be  said  in  favor  of  the  propriety  of 


APPENDIX    G.  725 

this  legislation,  having  in  view  the  decision  of  the  Supreme 
Court  in  the  Employers'  Liability  cases.  It  is  true  that  the 
Supreme  Court  in  that  case  held  the  Employers'  Liability 
act  unconstitutional,  because  it  made  the  railroad  company 
liable  to  any  of  its  employes,  without  restricting  the  liability 
to  those  who  were  engaged  in  interstate  commerce;  but  a 
parity  of  reasoning  would  not  require  that  we  should  say 
the  same  thing  of  the  Safety  Appliance  act  because  it  refers 
to  all  cars  used  on  any  railroad  engaged  in  interstate  com- 
merce. It  seems  to  me  that,  in  the  respect  complained  of, 
there  is  no  analog;^'  between  the  decision  of  the  Supreme 
Court  in  the  Employers'  Liability  cases  and  the  theory  of 
the  defendant's  counsel  as  to  the  constitutionality  of  the 
Safety  Appliance  act.  An  employe  of  a  railroad  company 
engaged  in  interstate  commerce  does  not,  merely  because  he 
is  such  employe,  sustain  the  same  relation  to  interstate  com- 
merce as  a  car  used  on  a  railroad  engaged  in  interstate  com- 
merce sustains  to  interstate  commerce  on  that  road.  Cer- 
tainly, the  Federal  Government  owes  no  duty  to,  and  has 
no  authority  over,  an  employe  of  a  railroad  which  is  engaged 
in  interstate  commerce,  if  the  emploj^e  himself  is  not  engaged 
in  the  work  of  interstate  commerce.  That  employe  is  subject, 
in  respect  to  his  relations  with  the  railroad  company,  to  the 
laws  of  the  State  in  which  the  service  is  performed.  There 
is  no  reason  why  the  power  of  the  State  should  not  be  suffi- 
cient for  his  protection,  or  why  the  Federal  Goverment  should 
interfere  with  respect  to  that  or  any  other  matter  relating 
to  that  employe  in  respect  to  his  work  with  the  railroad  com- 
pany, so  long  as  it  does  not  relate  to  the  interstate  commerce 
of  the  company. 

But  this  is  not  true  of  a  car  used  by  a  railroad  engag:ed 
in  interstate  cominerce.  All  of  the  cars  used  by  a  railroad 
engaged  in  interstate  commerce,  in  the  natural  course  of  their 
use,  are  instrumentalities  of  interstate  commerce;  whether 
they  carry  interstate  traffic  themselves  or  are  hauled  in  a 
train  which  contains  interstate  traffic  the  effect  is  the  same. 


726  FEDERAL  SAFETY  APPLIANCE  ACT. 

They  stand  in  a  certain  and  important  relation  to  that  inter- 
state commerce  over  which  Congress  has  control ;  and  it  is 
quite  apparent  that  Congress,  in  undertaking  to  determine 
the  manner  in  which  interstate  commerce  shall  be  carried  on, 
and  especially  in  making  effective  the  useful  and  beneficent 
purpose  of  providing  for  the  safety  of  employes,  would 
necessarily  have  a  regard  for  the  cars  which  the  interstate 
commerce  railroad  had  in  use.  And  thus,  discovering  a 
very  marked  and  practical  distinction  between  a  car  used 
by  an  interstate  commerce  railroad  and  a  person  in  the  em- 
ploy of  an  interstate  commerce  railroad,  we  see  how  one,  in 
the  nature  of  things,  becomes  properly  the  subject  of  Federal 
legislation  while  the  other,  depending  upon  the  character  of 
his  work,  may  or  may  not  become  properly  the  subject  of 
Federal  legislation.  This  proposition  is  amplified  in  the  reply 
herein  made  to  the  third  objection  to  the  applicability  of 
the  act. 

After  all,  on  this  subject  of  the  constitutionality  of  the 
act,  it  seems  to  me  that  that  question  has  been  fully  answered 
by  the  determination  of  the  Supreme  Court  in  Johnson  v. 
Railroad  Company,  supra,  wherein  it  is  declared  that  this 
act  of  1903  only  construes  and  applies  the  act  of  1893,  and 
does  not  add  any  new  affirmative  provision. 

As  to  the  second  objection,  whatever  may  be  the  right  of 
the  railroad  company  to  defend  against  the  claim  made  in  a 
suit  of  this  kind  by  saying  that  the  coupling  became  defective 
or  the  grabiron  lost  so  recently  before  the  time  named  in  the 
petition  as  to  make  it  impossible,  in  the  exercise  of  ordinary 
care,  to  replace  or  repair,  that  is  purely  a  matter  of  defense 
if  it  ever  can  be  asserted  at  all.  It  can  not  be  urged  in  sup- 
port of  a  demurrer  to  the  cause  of  action.  If  it  were  not 
so,  it  would  be  practically  impossible  for  proof  to  be  made 
in  any  case  of  a  violation  of  the  law.  There  are  approxi- 
mately 2,000,000  cars  in  use  by  railroads  in  this  country,  and 
if  the  contention  referred  to  is  sound,  it  would  be  necessary, 
in  order  to  sustain  a  cause  of  action  in  cases  under  this  act, 
that  proof  be  made  that  the  appliance  was  in  a  condition  of 


APPENDIX    G.  727 

unrepair  at  one  time,  that  it  continued  to  be  in  that  condition 
of  unrepair  or  in  a  developing  condition  of  greater  unrepair 
up  to  another  time,  the  lapse  of  the  intervening  time  being  so 
great  as  to  show  a  want  of  ordinary  care  on  the  part  of  the 
railroad  company.  In  the  meantime  the  very  thing  to  pre- 
vent which  the  law  was  passed  might  occur,  to-wit,  the 
injury  of  an  employe.  The  practical  administration  of  justice 
would  be  denied  and  the  real  enforcement  of  the  law  be 
impossible  if  the  construction  contended  for  was  sound. 

But  it  has  been  held  in  several  cases  that  even  as  a  defense 
on  the  merits  no  degree  of  care,  no  absence  of  negligence,  can 
excuse  for  the  failure  to  perform  a  duty  unqualifiedly  imposed 
by  statute.  And  in  the  recent  case  of  Railway  Company  v. 
Taylor,  Admx.,  decided  IMay  18  of  the  present  year  by  the 
Supreme  Court,  the  court  very  pointedly  lays  the  unqualified 
responsibility  upon  the  railroad  for  such  a  condition  of  un- 
repair. 

As  to  the  third  objection.  What  shall  we  do  in  the  case  of 
a  car  which  is  regularly  used  in  the  movement  of  interstate 
traffic  but  at  the  time  when  the  defect  is  known  to  exist  is 
itself  not  being  used  for  carrying  interstate  commerce,  but 
is  being  hauled  in  a  train  containing  a  car  loaded  with  inter- 
state commerce  ?  What  is  the  purpose  of  the  law  ?  Here  is  a 
train  which  is  engaged — at  least  part  of  it — in  interstate 
commerce,  and  so  long  as  that  is  true  every  car  in  the  train 
is  impressed,  so  far  as  the  requirements  of  this  act  are  con- 
cerned, with  an  interstate  character.  It  is  a  part  of  the  cur- 
rent. The  interstate  car  can  not  move  except  with  relation 
to  the  empty  car.  The  empty  car  may  at  any  moment  be 
coupled  to  the  interstate  car.  A  brakeman  engaged  in  per- 
forming some  duty  in  respect  to  the  interstate  car  may  be 
compelled  to  pass  over  or  use  a  grabiron  on  the  empty  car 
or  couple  the  empty  ear  to  the  interstate  car.  Endless  con- 
fusion would  arise  if  any  distinction  was  made  under  such 
conditions  between  a  car  loaded  with  interstate  traffic  and  an 
empty  car  regularly  used  in  the  movement  of  interstate 
traffic,   but  at  the  time  unloaded  and    coupled    to    another 


728  FEDERAL  SAFETY  APPLIANCE  ACT. 

ear  actually  in  use  in  the  movement  of  interstate  traffic. 
Of  course  the  same  thing  must  be  said  of  the  loaded  car, 
whatever  the  character  of  the  freight  it  carried,  if  it  is  a  car 
regularly  used  in  the  movement  of  interstate  traffic. 

It  seems  to  me  that  from  every  point  of  view  the  objections 
raised  to  the  several  causes  of  action  are  not  well  grounded. 
The  demurrer  is  overruled. 


U.  S.  V.  ATCHISON,  TOPEKA  &  SANTA  FE  RAILWAY 

COMPANY. 

(In  the  District  Court  of  tlie  United  States  for  the  Fourth  District  of 

Arizona,) 

Decided  July  11,  1908. 

( Syllabus  by  the  court. ) 

1.  The  height  of  drawbars  of  freight  cars  as  required  by  the  Federal 

Safety  Appliance  Act  shall  not  be  more  than  34%  inches  nor  less 
than  311/^  inches,  from  the  top  of  the  rail,  the  rail  being  on  the 
same  level  as  the  cars  equipped  with  such  drawbars. 

2.  In  prosecutions  to  recover   the  penalty  under  said  act  the  burden 

is  on  the  Government  to  show  by  a  clear  preponderance  of  evidence 
the  facts  as  alleged  in  the  petition. 

3.  A  failure  on  the  part  of  the  inspectors  for  the  railroad  company  to 

discover  defects  in  the  equipment  of  cars  cannot  excuse  tlie  com- 
pany from  liability  under  the  statute. 

4.  The   inspectors  for  the  Government  are  not  required  to  notifj^  the 

employes  of  the  railroad  company  of  defects  on  cars. 

5.  Nothing  but  inability  on  the  part  of  the  common  carrier  to  comply 

with  the  requirements  of  the  Safety  Appliance  statute  will  excuse 
its  non-compliance.  The  question  as  to  whether  it  is  convenient 
for  a  repair  to  be  made  at  a  certain  place  does  not  arise. 

6.  If  a  drawbar  of  a  car  be  piilled  out  en  route  it  is  the  duty  of  the 

carrier  to  make  tlie  necessary  repairs  at  the  nearest  point  where 
such  repair  can  be  made,  and  the  hauling  of  such  car  in  such  de- 
fective condition  beyond  this  point  is  a  violation  of  the  law. 

7.  If  for  any  cause  a  part  of  tlie  coupling  or  uncoupling  mechanism  of 

a  car  be  removed,  broken,  or  parts  being  present  and  not  connected, 


APPENDIX    G. 


729 


thereby  rendering  it  such  that  it  can  not  bo  operated  without  the 
necessity  of  a  man  going  between  the  ends  of  tlie  cars,  then  such 
car  is  not  equipped  in  compliance  with  the  law. 

8.  The  law  requires  that  both  ends  of  each  car  be  equipped  as  required 

by  the  statute. 

9.  The  statute  applies  to  empty  cars  as  well  as  to  loaded  cars. 

10.  In  a  prosecution  to  recover  the  penalty  for  the  violation  of  the  stat- 

ute within  a  Territory  of  the  United  States,  it  is  not  necessary  to 
show  that  the  defendant  is  engaged  in  interstate  commerce;  neither 
is  it  necessary  to  show  that  the  car  itself  is  engaged  in  interstate 
traffic. 

11.  To  constitute  a  compliance  with  the  law  it  is  not  sufficient  that  the 

coupling  or  uncoupling  apparatus  may  be  operated  with  great  ef- 
fort without  going  between  the  ends  of  the  cars,  but  it  must  be 
in  such  condition  that  it  can  be  operated  by  the  use  of  reasonable 
effort. 

12.  Positive  testimony  is  to  be  preferred  to  negative  testimony  in  the 

absence  of  other  testimony  or  evidence  corroborating  the  one  or 
the  other. 

Joseph  L.  B.  Alexander,  United  States  attorney ;  Roscoe  F. 
Walter,  special  assistant  United  States  attorne3\  for  the 
United  States. 

Faul  Burkes  for  defendant. 

INSTRUCTIONS    TO    JURY. 

Sloan,  District  Judge  (charging  jury)  : 

This  suit  is  brought  under  the  provisions  of  the  Congres- 
sional act  of  March  2,  1893,  as  amended  by  the  law  of  1896 
and  by  the  law  of  1903,  which  act  and  the  said  amendments 
are  known  as  the  Safety  Appliance  acts.  Under  section  2 
of  the  act  it  is  made  the  duty  of  common  carriers  engaged  in 
interstate  commerce,  and  also  common  carriers  within  the 
Territories  of  Arizona  and  New  Mexico,  to  equip  their  cars 
with  couplers  coupling  automatically  by  impact  and  which 
can  be  uncoupled  without  the  necessity  of  men  going  between 
the  ends  of  the  cars.  The  act  also  provides  that  it  shall  be  un- 
lawful for  any  such  common  carrier  to  use  any  freight  car 
equipped  with  a  drawbar  which,  measuring  perpendicularly 


730 


FEDERAL  SAFETY  APPLIANCE  ACT. 


from  the  level  of  the  tops  of  the  rails  to  the  center  of  such 
drawbar,  shall  not  be  more  than  34>^  inches  in  height  or 
less  than  311/^  inches  in  height;  it  being  assumed  in  such 
measurement  that  the  rails  are  on  the  same  level  as  the  car 
equipped  with  such  drawbar. 

It  is  further  provided  that  any  violation  of  either  of  the 
provisions  of  the  statute  which  I  have  called  your  attention 
to  renders  such  common  carrier  liable  to  a  penalty  of  $100 
for  each  and  every  such  violation,  to  be  recovered  in  a  suit 
or  suits  brought  by  the  United  States  in  a  court  having 
jurisdiction  under  the  act. 

The  complaint  in  this  case  contains  fifteen  distinct  counts 
or  causes  of  action.  The  first  and  the  tenth  counts  relate  to 
alleged  violations  by  defendant  of  the  provision  of  law  with 
reference  to  the  height  of  drawbars,  it  being  alleged  in  each 
of  these  counts  that  the  defendant  company  used  a  freight 
car  with  a  drawbar  which  was  less  than  3114  inches  in  height, 
measured  perpendicularly  from  the  level  of  the  tops  of  the 
rails  to  the  center  of  such  drawbar.  Counts  2  to  9,  inclusive, 
and  11  to  15,  both  inclusive,  relate  to  alleged  defects  in  the 
couplers  with  which  the  various  cars  named  in  the  counts 
were  equipped,  it  being  charged  that  each  was  defective  in 
that  it  could  not  be  operated  so  as  to  uncouple  the  car  to 
which  it  was  attached  without  the  necessity  of  a  man  or  men 
going  between  the  ends  of  such  car  and  that  to  which  it 
might  be  coupled. 

The  burden  is  upon  the  plaintiff  in  this  cause  to  show  by  a 
clear  preponderance  of  the  evidence  that  the  defects  in  safety 
appliances  alleged  to  have  existed  as  set  out  in  the  complaint 
did  actually  exist  and  the  existence  of  such  defects  must  be 
established  by  a  fair  preponderance  of  the  evidence. 

The  burden  is  laid  ui)on  the  defendant,  under  the  statute, 
to  discover  defects  in  the  appliances  mentioned  under  the 
act,  whenever  an  opportunity  is  fairly  presented  for  the  dis- 
covery of  such  d(!f('ets.  Any  failure  or  omission  on  the  part 
of  the  inspectors  of  the  company  to  discover  such  defects, 


APPENDIX    G. 


731 


after  such  opportunity  is  presented,  can  not  excuse  the  com- 
pany from  liability  under  the  statute. 

The  inspectors  for  the  Government  are  not  required  to 
notify  the  employes  of  the  railroad  company  of  existing  de- 
fects previous  to  or  at  the  time  of  movement  of  defective 
cars,  though  such  inspectors  previously  discovered  such  de- 
fects. 

I  charge  you  that  the  law  requires  a  strict  compliance  on 
the  part  of  common  carriers  with  the  provisions  of  the  Safety 
Appliance  act  to  which  I  have  called  your  attention.  Nothing 
but  inability  on  the  part  of  a  common  carrier  to  comply  with 
the  requirements  of  the  act  will  excuse  its  non-compliance. 

I  charge  you  further  that  in  the  case  of  a  car  which  may 
have  its  drawbar  pulled  out  en  route,  it  is  the  duty  of  the 
common  carrier  to  make  the  necessary  repair  at  the  nearest 
point  where  such  repair  can  be  made.  It  may  haul  such  car 
to  such  nearest  point  and  no  farther,  using  such  care  and 
caution  as  may  be  needed  to  insure  the  highest  degree  of 
safety  and  security  while  being  so  hauled.  The  common 
carrier  may  not  choose  its  place  to  make  such  repair,  but  must 
avail  itself,  for  that  purpose,  of  the  nearest  point  where,  by 
the  exercise  of  diligence  and  foresight,  the  company  may  pre- 
pare to  make  such  repair.  Inasmuch  as  inability  alone  will 
excuse  the  common  carrier  from  a  literal  compliance  with 
the  act,  it  is  the  duty  of  the  common  carrier  to  have  the  mate- 
rial and  facilities  on  hand  at  each  repair  point  which  may 
be  needed  to  make  repairs  of  the  kind  necessary  to  comply 
with  the  requirements  of  the  Safety  Appliance  acts.  It  is  the 
duty  of  the  common  carrier  to  use  reasonable  foresight  in 
providing  material  and  facilities  for  such  purpose.  In  such 
a  case  it  is  not  a  matter  of  convenience  merely,  but  a  question 
of  ability  on  the  part  of  the  common  carrier  to  comply  with 
the   act. 

In  this  case  the  jury  is  instructed  that  the  defendant  com- 
pany can  not  excuse,  under  the  Safety  Appliance  act,  the 
hauling  of  a  car  which  was  without  its  drawbar  from  Winslow 


v:::.' 


i'i';i)i';i{,\i,  HAicicrv    wi-hanc.k  aci' 


lo  ;ii.iiic  (illirc  iHiiiil  lor  ri'iiiiir:.  1 1'  il.  could  lnivc  hccu  vvilliiii 
llii'  |ii)\\ir  ..r  Hie  (Icrriid.iiil  (•(iiii|i;iiiy,  li;ii|  il  cviTciHcil  roisoii 
ill))''  i-nn-  mill  I'ldrMi'liI  ,  In  li;i\r  ic|i;i  ind  ij  .d,  Winslovv,  il, 
liciii,"  cliJU'L'i'd,  ;i!i  I  liii\r  Miiid  Im  ritrc,  udli  iln-  didy  "T  li;iviri^^ 
oil  liiitid  ;d  .'Uiid  I'l'itiiii'  |>iiiid  llic  iii;di'n;d  ;ind  I'jciI  d  n.;  ni'i'dcd 
lor  Hud.  |)iir|)OMi- 

Il  ill  II  VKil.d  ion  ol  l.iu  rciidi  riii;^  llic  loininoii  I'.iiTnr  li.dilt; 
under  llir  Hlfllldi'  lo  ii:;r  n  cir  wdli  llir  dev  i:;  pin  (d'  llic  i  li;iin 
coiiiicrj  iiii'  llic  lock  lilock  lo  llir  1 1 1  icon  |  iJ  ii  i  >'  li\cr  lirol.cji  or 
rciiio\cd  Tor  iiny  cnii'ic,  when  I  he  erfeel  would  he  |o  render  IIk^ 
iiiieoiiplin!';  iiiechiini.in  iiio|)erid  i  \'e  wilhoid  llie  nccessily  of 
il,  iii.'in   I'oin,"  liclwccii   Ihc  end;  ol'  llie  cnrM. 

ir  d  .i|)|)e;ir  llnd  Ihc  eoiipler  lie  |ircsciil  lull  llic  |i;irlM  ;irc 
(lol-  Mo  connccled  Ih.d  Ihc  coiijiler  c;in  lie  o|)er,ilcd  u  illioid  IImi 
iH'ccsHily  <d'  ,1  Minn  or  nicii  (.'[uirif^  hclvvccn  Ihc  ciid.s  (d"  Iln-  cjirH, 
then   il    i:i  iio|    ji   conipliiiiict'   willi    liic   sliilidc. 

^'oll  lire  idso  iii;:lnie|ed  Ih.il  il  i:;  nol  MidlicH'id  lli;il  oint 
end  ol'  cicli  c;ir  lie  e(|iii|i|ied  11;;  re<|iiired  liy  llie  ;;l;dide  Iml, 
liolli  end:;  iiiii!;!  lie  ;:o  ei|iii|i|ied  lliid  ihe  coii|iliii,";  or  iincoii|i 
I  III,";  ini'chiiniMii  (d'  e.icli  enr  nniy  lie  o|>cr;i  I  i\c  in  d  ;el  f  wil  IkhiI- 
i'c<|iiiriti<^  Ihe  iii;ini|inhil  loll  ol'  Ihe  device  on  Ihc  ;id.i;icenl  aw 
lo  ell'i'cl  11  coii|i|iii:'  or  iincoii|il  III":  lo  or  I'loni  .{iieli  ;id.|;iccid, 
I'.ir. 

II    i:;  nol    n v-iiiiiry   I  hid    iiiiy  c;ir"  in  (|ih";|ion   he  n   loiidcd  cur 

In   conic    wilhiii    Ihc    iiiciiiiin;.^   of    Ihc    hIiiIhIc.       11'    Ihc    ciir    is 
lintdiMJ    in    Ihc  did'cclivc  <'oii(lil  ion,   Ihc  nIiiIhIc   is   violiilcd    n- 
^fMnlh'NM  of    Ihc    fuel    whclher    Ihe   cur    lie    loiided    or    nnlo.ided. 

Ncilhcf  in  il   III SHiiry,   in   He  e,i';c  .d'  n   |troMcciili<iii   |o  rccn\ci- 

Ihc  peiuills'  Tor  II  viohdion  lh;d  occiirM  wilhiii  llii,';  'rcrrdory, 
Hull  Ihe  c;ir  I.e  cnj'iij'cd  in  iiiler:;l.ilc  IridTuv  il  i;;  suriiciciil, 
iinder  seclioii  I  id'  Hie  ;iiiM'iidiiienl  of  l!»(i:;,  if  Hie  dcreclivc 
ciir  lie  liiiujcd  liy  II  coniiiioii  e.irrier  williin  Hie  'rcrrdory,  c\'cn 
Ihoui^li  Ihc  currier  he  nol  cii;';i"i'd  m  inlerslidc  coiiiiiiercc, 
provided  Ihc  fur  doc-i  nol  conic  wdliin  Ihe  e\cep|ions  cm 
liniccd  in  r;cc|ion  (i  ol"  Hic  orii'inid  iicl  nw  nniendi'd  April  I, 
jHl)(i.  or  is  nol.  used  upon  ji  sired   inilwiiy. 


AI'I'IONDIX    (].  7153 

Yoli  .'in!  iiislriiclccl  ilial,  il"  \\\r.  f«<)V(^rrirn(!iii  has  (ilcjarly 
jiiid  saMsl'aclorily  shown  hy  llic  rvidciicc!  Miat,  IIk;  cur,  as 
allcj^cd  ill  llic  lirsl,  coiimI  oI"  llic  ( Jovcniiiicnl.'s  |K'l.ili(>ii,  was 
(;(liii|)|)f(|  will)  ;i,  (Irawl)ar  wliidi,  iiicasiii-cd  [xirpcndifMilarly 
I'roMi  U\v.  level  ol"  the  tops  ol"  lilt;  I'ails  l,o  IIk;  (Hauler  of  such 
drawbar,  was  less  lliaii  '.W'/-  iiielics  in  liei(^h(,,  as  re(|iiired  hy 
SOC-iioii  f)  ol"  llie  l''edei';il  SaTety  A|)pliaMee  ;iei,  iippr'oved 
March  2,  1S!);{,  as  ainended  April  I,  IS!)(i  ;ui<l  March  U,  1!)0;{, 
th(ni  you  will  (ind  I  he  dereiidanl  Miiilty  on  such  count..  And  so 
il,  is  with   releceiiee  to  coiiiil,    10  ol'  llie  ( loverntiienl, 's   petition. 

You  ar(!  also  instructed  |h;it  if  the  dloveciniicnt,  lias  ('.\i",iv\y 
and  salisFactdriiy  sliown  hy  the  evideiHte  lli;i(,  the  car,  as 
allej^ed  in  count  'J  of  the  ( Jovei'iinieiit  's  petition,  was  not, 
C(|uii)i)<!d  with  couplers  coupiin^^  aut,oitial,i(tally  hy  impact,  and 
wliicli  could  he  uncoupled  without,  the  necessity  ol"  n  man 
or  men  jj;oin^^'  hetweeti  the  ends  ol*  the  car-s,  tiien  you  will  liiid 
tho  derendant-  j^iiilty  on  that  count.  And  the  same  with  re- 
spect t,o  couuts  :{,  1,  r.,  C,  7,  H,  !),  11,  13,  l:'.,  ll.  and  If)  of 
the;  fiOV('rrurH!nt,'s  |)elilioii. 

On  the  other  hand,  if  you  r;iil  to  liiid  clearly  an<l  satis- 
l"a(;l,orily  I'rom  the  evidenc(!  that  as  to  any  ol'  these  coiiids 
then;  was  a  violation  of  the  r-e(pjircmeiits  of  tlii-  statute,  then 
as  to  sucth  count,  or  c<)uiits  you  will  find  the  derendnnl  not 
guilly. 

'J'he  coiift  instructs  you  that,  if  you  liiid  I'rom  the  evidence 
that  the  ahsence  ol"  the  "keeper"  did  not,  destroy  the  aut,o- 
matic  action  ol'  the  coii|)ler  on  cars  AT'.HiMH,  0()2!)l,  and 
9()2()(),  as  S(!t  out  in  the  (il'th,  sixth,  ;iiid  H(!vcrith  couiHs  re- 
sr)(!(',tiv(!ly  of  plaintiir's  comphiint,  hut  that  such  couplers 
could  hy  the  use  of  reasonahle  efforl  have  been  uiicoil|)led 
by  use  of  the  lever  (»r  their-  own  iruHihaMism  withoid,  l,lie 
necessity  ol"  a  man  eoi,i<r  hctwcfii  the  c;irs,  notwilhstandint^ 
the  absence;  of  the  "kcwpcr,"  then  you  nnist,  (ind  for  the  de- 
f(!ndant  on  the  (ifth,  sixlli,  and  seventh  counts. 

Tn  eonsideriuf^  the  testimony  of  th(!  witnesses  who  liav<; 
testified  berore  you,  you  have  a  ri^'ht  l,o  wiMgh,  in  niakinf,'  up 


734  FEDERAL  SAFETY  APPLIANCE  ACT. 

your  judgment,  the  testimony  of  any  witness,  but  in  doing 
this  you  will  not  give  either  more  or  less  weight  to  the  testi- 
mony of  any  witness  because  of  the  fact  that  such  witness 
testifies  on  behalf  of  the  Government  or  because  of  the  fact 
that  such  witness  testifies  on  behalf  of  the  railroad  company. 
But  you  will  give  to  the  testimony  of  each  witness  that  weight 
which,  in  your  judgment,  it  is  entitled  to  from  all  the  facts 
and  circumstances  in  the  case. 

In  this  connection  it  is  proper  to  state  that  positive  testi- 
mony is  to  be  preferred  to  negative  testimony,  other  things 
being  equal ;  that  is  to  say,  when  a  credible  witness  testifies 
to  having  observed  a  fact  at  a  particular  time  and  place  and 
another  equally  credible  witness  testifies  to  having  failed  to 
observe  the  same  fact  with  the  same  or  equal  opportunity  to 
so  observe  such  fact,  the  positive  declaration  is  to  be  pre- 
ferred to  the  negative  in  the  absence  of  other  testimony  or 
evidence  corroborating  the  one  or  the  other. 

You  are  instructed  that  if  you  believe,  from  a  consideration 
of  all  of  the  testimony  in  the  case,  that  any  witness  has 
willfully  testified  falsely  as  to  any  material  fact,  then  you  are 
at  liberty  to  disregard  the  whole  of  his  testimony,  except  in 
so  far  as  the  testimony  of  such  witness  may  be  corroborated 
by  other  credible  evidence  in  the  case. 

The  court  instructs  you  that  by  a  preponderance  of  the 
evidence  is  not  meant  the  testimony  of  the  greater  number  of 
witnesses,  but  rather  the  greater  weight  of  credible  testimony 
as  determined  by  the  character  of  the  testimony  of  the  vari- 
ous witnesses  and  the  respective  means  and  opportunities  such 
witnesses  may  have  had  of  acquiring  information  and  knowl- 
edge and  of  seeing  or  knowing  and  remembering  that  to 
which  they  testify,  the  probability  of  its  truth,  their  interest, 
if  any,  whether  as  parties  or  witnesses  in  the  result  of  the 
action,  and  also  their  manner  of  testifying,  and  every  other 
fact  whif'h  wiU  enable  you  to  determine  the  weight  and 
credibility  to  be  given  to  their  testimony. 

If  you  find  the  defendant  guilty,  you  will  say:   "We,  the 


APPENDIX    G.  735 

jury,  find  the  defendant  guilty  on  the  first,  second,  third, 
fourth,  fifth,  sixth,  seventh,  eighth,  ninth,  tenth,  eleventh, 
twelfth,  thirteenth,  fourteenth,  and  fifteenth  counts  of  the 
petition." 

You  may  find  the  defendant  guilty  on  some  of  the  counts 
and  not  guilty  on  the  others.  In  that  case  the  form  of  your 
verdict  will  be:  "We,  the  jury,  find  the  defendant  guilty" 
on  whatever  number  of  counts  you  do  find  the  defendant 
guilty,  and  "not  guilty"  on  whatever  you  find  the  defendant 
not  guilty. 

If  you  find  the  defendant  not  guilty,  you  will  say:  "We, 
the  jury,  find  the  defendant  not  guilty." 

Verdict  of  guilty  on  all  counts. 

United  States  Circuit  Ck)urt  of  Appeals,  Seventh  Circuit. 
No.  1475.— October  term,  A.  D.  1908. 


BELT    RAILWAY    COMPANY    OF    CHICAGO,    PLAIN- 
TIFF IN  ERROR,  V.  UNITED  STATES  OP 
AMERICA,  DEFENDANT   IN   ERROR. 

[168  led.  542.] 

In  error  to  the  District  Court  of  the  United   States  for  the  Northern 

District  of  Illinois,  Eastern  Division. 

Decided  February  3,  1909. 

A  belt-line  railway  company,  operating  a  line  lying  wholly  within  a  city, 
county,  or  State,  while  moving  a  commodity  originating  at  a  point 
in  one  State  and  destined  to  a  point  in  another  State,  is  engaged  in 
interstate  commerce  by  railroad,  and  as  such  is  within  the  Federal 
Safety  Appliance  Acts. 

William  J.  Henley,  William  L.  Reed,  and  Francis  Adams, 
Jr.,  for  plaintiff  in  error. 

Edwin  W.  Sims,  United  States  attorney;  Harry  A.  Parkin, 
assistant  United  States  attorney;  and  Philip  J.  Doherty  and 


736 


FEDERAL  SAFETY  APPLIANCE  ACT. 


Luther  M.  Walter,  special  assistant  United  States  attorneys, 
for  defendant  in  error. 

Before  Grosscup,  BxVker  and  Seaman,  Circuit  Judges: 


OPINION    OF    THE    COURT. 

Baker,  Circuit  Judge,  delivered  the  opinion  of  the  court : 

The  writ  is  addressed  to  a  judgment  assessing  a  penalty 
against  plaintiff  in  error  for  an  alleged  violation  of  the  pro- 
visions of  the  Safety  Appliance  acts  in  relation  to  power 
brakes.  27  Stat.  L.  531,  29  Stat.  L.  85,  32  Stat.  L.  943.  Cer- 
tain questions  relating  to  the  purpose,  scope,  and  validity  of 
this  legislation  are  considered  in  Wabash  R.  Co.  v.  U.  S.  and 
Elgin,  etc.,  R.  Co.  v.  Z7.  aS'.,  herewith  decided. 

The  only  assignments  presented  and  discussed  by  plaintiff 
in  error  are  that  the  court  erred  in  refusing  to  direct  a  ver- 
dict of  not  guilty,  and  in  giving  the  following  instruction: 
' '  The  question  therefore  presents  itself,  and  it'  is  a  legal  ques- 
tion. Was  the  Belt  Company,  at  the  time  it  moved  this  string 
of  42  freight  cars,  containing  a  car  originating  in  Illinois  and 
destined  to  Wisconsin,  engaged  in  interstate  commerce?  I 
charge  you  that  when  a  commodity  originating  at  a  point  in 
one  State  and  destined  to  a  point  in  another  State  is  put 
aboard  a  car,  and  that  car  begins  to  move,  interstate  commerce 
has  begun,  and  that  interstate  commerce  it  continues  to  be 
until  it  reaches  its  destination.  If,  between  the  point  of 
origin  of  this  commodity  and  the  point  of  destination  of  this 
commodity,  the  car  in  which  it  is  being  vehicled  from  origin 
to  destination  passes  over  a  line  of  track  wholly  within  a  city, 
within  n  county,  or  within  a  State,  the  railway  company  oper- 
ating flint  line  of  track  while  moving  this  commodity,  so 
origii;ating  and  destined  from  one  j)oint  to  another  point, 
intrastate,  is  engaged  in  interstate  commerce." 

Was  there  sufficient  evidence  to  warrant  the  jury  in  finding 


Ai^FENDIX    G.  '^37 


that  in  hauling  the  train  in  question  plaintiff  in  error  as  a 
common  carrier  was  "engaged  in  interstate  commerce  by 
railroad  ? ' ' 

The  railroad  tracks  of  plaintiff  in  error  lie  wholly  within 
Cook  County,  111.  There  are  21  miles  of  main  line  and  about 
90  miles  of  switching  and  transfer  tracks.  The  main  line  con- 
stitutes a  belt  that  intersects  the  trunk  lines  leading  into 
Chicago.  B}^  leads  and  Ys  direct  physical  connection  with 
the  trunk  lines  is  maintained.  Plaintiff  in  error's  business 
consists  in  transporting  cars  between  industries  located  along 
its  line,  between  industries  and  trunk  lines,  and  between 
trunk  lines.  The  first  two  kinds  need  not  be  noticed  as  the 
transportation  here  involved  was  between  trunk  lines.  The 
train  in  question  contained  among  others  a  car  laden  with 
lumber,  and  consigned  from  a  point  in  Illinois  on  the  Chicago 
&  Eastern  Illinois  to  a  point  in  Wisconsin  on  the  Chicago  & 
Northwestern.  This  car  was  taken  by  the  plaintiff  in  error 
from  the  tracks  of  the  Eastern  Illinois  over  the  belt  line  and 
put  on  the  tracks  of  the  Northwestern.  For  services  of  this 
kind  plaintiff  in  error  makes  arbitrary  charges  of  so  much  a 
car,  which  are  collected  monthly  from  the  railroad  companies 
for  which  the  services  are  rendered.  In  such  operations  plain- 
tiff in  error  has  no  dealings  with  the  shippers  and  pays  no 
attention  to  the  class  of  traffic.  Its  relation  to  the  traffic  was 
stated  by  the  general  superintendent,  as  follows:  "The  Belt 
Company  acts  practically  as  an  agent  for  the  trunk  lines  in 
the  handling  of  cars  from  one  connection  to  another  through 
its  yards." 

In  United  States  v.  Geddes,  131  Fed.  Rep.,  452,  defendant 
as  receiver  was  operating  a  narrow  gauge  railroad  that  lay 
wholly  in  Ohio.  ' '  At  Bellaire  it  connected  with  the  Baltimore 
&  Ohio  road,  in  the  sense  that  it  received  from  the  Baltimore 
&  Ohio  freight  from  other  States  marked  for  points  on  its 
line,  and  delivered  to  the  Baltimore  &  Ohio  freight  from 
points  on  its  line  marked  for  other  States,  in  the  following 
manner:    There  was  no  interchange  or  common  use  of  cars, 


738  FEDERAL  SAPETY  APPLIANCE  ACT. 

the  gauges  of  the  two  roads  being  different.  The  cars  of  the 
defendant  road  were  used  only  on  its  own  line.  But  a  trans- 
fer track  ran  from  the  main  line  of  the  Baltimore  &  Ohio  to 
the  terminal  station  of  the  defendant  road,  so  that  the  freight 
cars  of  the  two  roads  could  be  placed  alongside  adjoining 
platforms  and  the  transfer  of  freight  made  by  the  use  of 
trucks  handled  by  the  Baltimore  &  Ohio  men.  No  through 
bills  of  lading  for  such  freight  were  issued  by  either  road, 
no  through  rate  w^as  fixed  by  mutual  arrangement,  and  no 
conventional  division  of  a  through  freight  charge  was  made." 
The  Circuit  Court  of  Appeals  for  the  Sixth  Circuit  decided 
that  the  narrow  gauge  cars  in  question  were  not  subject  to  the 
Safety  Appliance  act,  holding  that  a  common  carrier  was  not 
"engaged  in  interstate  commerce  by  railroad"  within  the 
meaning  of  the  Safety  Appliance  act  unless,  referring  to  the 
definition  in  the  original  interstate  commerce  act,  it  was  "en- 
gaged in  the  transportation  of  passengers  or  property  wholly 
by  railroad  or  partly  by  railroad  and  partly  by  water  when 
both  are  used,  under  a  common  control,  management,  or  ar- 
rangement for  a  continuous  carriage  or  shipment,"  from  one 
State  to  another.  The  equipment  of  a  narrow  gauge  railroad 
Avhich  lay  wholly  in  Colorado  and  which  was  similarly  en- 
deavoring to  conduct  a  separate  and  independent  business, 
was  held  by  the  Circuit  Court  of  Appeals  for  the  Eighth 
Circuit  to  be  within  the  Safety  Appliance  act.  TJ.  8.  v.  Colo- 
rado, etc.,  R.  Co.,  157  Fed.  Rep.,  321. 

Plaintiff  in  error  argues  the  present  case  as  if  the  judgment 
could  not  properly  be  affirmed  Avithout  our  adopting  the  de- 
cision in  the  eighth  circuit  as  against  that  in  the  sixth.  In 
our  judgment  the  question  presented  to  those  courts  is  ex- 
eluded  from  our  consideration  by  certain  distinguishing  and 
controlling  facts.  The  narrow  gauge  track  had  no  direct 
physical  connection  with  the  broad  gauge  tracks  of  the  inter- 
state trunk  lines,  and  so  no  cars  from  other  States,  laden  with 
goods  from  other  States,  were  hauled  on  the  local  highway. 
The  Belt  Line  physically  connected  its  track  with  those  of  the 


APPENDIX    G.  739 

Eastern  Illinois  and  of  the  Northwestern,  so  that  a  continuous 
highway  across  State  lines  was  formed,  on  which  interstate 
traffic,  loaded  on  interstate  ears,  was  moved  from  origin  to 
destination  without  change  of  cars.  The  narrow  gauge  road, 
by  limiting  its  bills  of  lading  to  points  on  its  own  line,  en- 
deavored to  escape  being  held  a  common  carrier  engaged  in 
interstate  transportation.  The  Belt  Line,  issuing  no  bills  of 
lading  because  of  having  no  dealings  with  the  shipper  or  with 
anyone  on  his  behalf,  performing  its  gateway  service  on  ac- 
count of  and  as  agent  of  the  trunk  lines,  made  its  track  the 
track  of  its  principals.  Consequently  the  character  of  the 
transportation  should  be  determined  by  considering  the  trans- 
portation as  the  act  of  such  principals.  Trunk-line  yards  are 
in  some  instances  so  related  to  each  other  that  through  cars 
can  be  transferred  without  the  intervention  of  a  go-between. 
We  are  of  opinion  that  the  transportation  in  question  was 
the  same  in  legal  effect  as  if  the  Eastern  Illinois  by  means  of 
its  own  locomotive  and  track  had  put  the  through  car  on  the 
Northwestern 's  track.  In  this  view  there  was  evidence  from 
which  the  inference  of  fact  might  warrantably  be  drawn  by 
the  jury  that  there  was  a  common  arrangement  for  a  con- 
tinuous carriage  over  the  Eastern  Illinois  and  the  North- 
western ;  and  so,  with  respect  to  the  movement  in  question, 
plaintiff  in  error  was  engaged  in  interstate  transportation. 

When  the  portion  of  the  charge  complained  of  is  read  in 
the  light  of  the  undisputed  facts,  we  see  no  basis  for  saying 
that  the  substantial  rights  of  plaintiff  in  error  were  injuri- 
ously affected. 

The  judgment  is  affirmed. 

Seaman,  Circuit  Judge,  dissenting: 

I  can  not  concur  in  the  affirmance  of  this  judgment,  as  I 
believe  the  operation  of  the  Belt  Company  described  in  the 
record  is  not  within  the  meaning  of  the  Safety  Appliance 
act.  It  clearly  appears  that  this  company  was  an  independent 
railroad  within  the  city,  engaged  only  in  transferring  cars 


740  FEDERAL  SAFETY  APPLIANCE  ACT, 

(loaded  or  unloaded)  from  the  terminal  of  one  trunk  line  in 
Chicago  to  that  of  another  trunk  line;  that  it  had  no  part  in 
the  shipment  of  any  commodities  which  were  upon  the  cars, 
nor  interest  in  shipping  bills  or  rates  charged,  nor  concern  in 
their  ultimate  destination  and  delivery  to  consignee ;  that 
its  only  service  involved  herein  was  the  transfer  of  cars  over 
its  own  lines,  from  one  terminal  to  the  other  in  Chicago,  when 
the  cars  were  delivered  to  it  by  a  trunk  line  to  be  so  trans- 
ferred, for  which  service  the  Belt  Company  was  paid  by  the 
trunk  line  an  arbitrary  rate  per  car,  on  monthly  collections. 
In  such  service  the  Belt  Company  is  neither  chargeable  with 
notice  whether  the  service  of  the  trunk  lines  in  respect  of  the 
cars  is  interstate  commerce  or  otherwise,  nor  concerned  in 
such  inquiry,  as  I  believe.  It  was  not  "engaged  in  inter- 
state commerce,"  as  defined  in  the  interstate  commerce  act, 
and  I  am  of  opinion  that  the  two  acts  are  in  pari  materia,  so 
that  the  terms  of  the  Safety  Appliance  act  are  inapplicable 
to  the  service  thus  performed  by  the  Belt  Company,  and  the 
judgment  should  be  reversed. 


THE    UNITED    STATES    v.   LEHIGH   VALLEY   RAIL- 
ROAD COMPANY. 

[160   Fed.   69G.] 
(^Motion  for  new  trial  reported  at  162  Fed.  Rep.  410.) 

In  the  District  Court  of  the   Ignited  States  for  the  Eastern  District  of 

Pennsylvania. 

DecernlK'r  Term,  1906. 

(Decided  March  11,  1908.) 

1.  All  action  l)i(mi^rlit  to  recover  the  [K'nalty  provided  for  in  the  Safety 

Appliance  Act  is  not  a  criminal  case. 

2.  Tlie  (liovernment  need  not  prove  its  case  beyond  a  reasonable  doubt; 

it  is  HufTicient  if  it  furnishes  clear  and  satisfactory  evidence  of  all 
tlie  necessary  facts. 


APPENDIX    G.  ^41 

The  statute  requires  as  to  couplers  that  the  apparatus  on  each  end 
of  every  car  sliall  be  in  operative  condition. 

In  order  to  constitute  a  violation  of  tlie  Safety  Appliance  Act,  the  car 
must  be  moved  in  a  defective  condition. 

Where  a  car,  whicli  had  been  at  rest  at  a  station  for  a  period  of  time, 
is  taken  out  upon  the  road  in  a  defective  condition,  the  carrier  is 
liable  for  the  penalty,  and  it  is  wholly  immaterial  vphether  the  de- 
fendant knew  of  the  defect  or  could  have  ascertained  its  condition 
by  the  exercise  of  reasonable  care;  in  such  a  case  the  carrier  must 
find  the  defect  at  its  peril. 

STATEMENT  OP  FACTS. 

This  is  an  action  brought  by  the  United  States  to  recover 
the  statutory  penalty  of  $100  under  the  Safety  Appliance  act. 

Two  inspectors  of  the  Interstate  Commerce  Commission 
found  Philadelphia  &  Eeading  car  No.  46247,  November  12, 
1906,  at  Allentown.  Pa.,  in  the  yard  known  as  the  East  Penn 
Junction  yard,  with  the  lever  disconnected  from  the  lock  pin 
or  lock  block  on  each  end  of  the  car.  The  car  was  first  in- 
spected at  2 :50  p.  m. ;  it  left  East  Penn  Junction  at  8 :30  p.  m. 
for  Cementon,  Pa.,  a  few  miles  away,  and  was  found  there 
the  next  day  in  the  same  defective  condition.  Defendant's 
employes  testified  that  a  defect  had  existed  at  East  Penn 
Junction  on  the  12th,  but  defendant  contended  that,  as  the 
repairs  were  generally  made  when  found,  the  car  did  not  leave 
for  Cementon  in  a  defective  condition. 

J.  Whitaker  TJiompson,  United  States  attorney;  John  C. 
Swartley,  assistant  United  States  attorney ;  Luther  M.  Walter, 
special  assistant  United  States  attorney,  for  plaintiff. 

J.  Wilson  Baijard,  Esq.,  for  the  defendant. 

Hon.  John    B.  McPherson,  Judge   (charging  jury)  : 

Gentlemen  of  the  jury :  The  question  that  has  been  sub- 
mitted to  you,  the  question  of  fact  that  has  been  argued  to 
you,  is  one  that  has  not  appeared  in  the  other  cases  that  per- 
haps may  have  been  tried  in  the  hearing  of  some  of  you.  The 
defendant  contends  here  that  the  Government  has  not  offered 


742  FEDERAL  SAFETY  APPLIANCE  ACT. 

sufricient  evidence  to  satisfy  you  that  this  car  was  hauled  in 
a  defective  condition  from  East  Penn  Junction  to  Cementon, 
to  which  the  load  which  it  carried  was  bound,  and  that  is 
the  question  of  fact  for  you  to  determine  in  this  case.  This 
Safety  Appliance  act,  the  particular  section  with  which  we 
are  concerned,  makes  it  unlawful  for  a  common  carrier,  such 
as  the  Lehigh  Valley  Railroad  Company,  to  haul  or  permit 
to  be  hauled  or  used  on  its  line  any  car  used  in  moving  inter- 
state traffic  not  properly  equipped  with  automatic  couplers. 
In  this  case  the  question  is  whether  or  not  this  car  was  moved 
from  East  Penn  Junction  to  Cementon  by  the  Lehigh  Valley 
Railroad  Company  in  a  condition  that  was  not  such  as  is  pro- 
vided for  by  this  statute,  and  the  duty  is  upon  the"  Govern- 
ment to  satisfy  you  upon  that  subject.  The  burden  of  proof 
rests  upon  the  Government  in  this  case  to  establish  to  you  by 
clear  and  satisfactory  testimony  that  that  fact  existed.  It  is 
not  a  criminal  case.  We  are  not  trying  an  indictment.  We 
are  trying  a  suit  for  a  penalty,  a  suit  for  a  penalty  of  $100, 
for  an  alleged  non-compliance  with  this  Safety  Appliance  act, 
and  the  burden  of  proof  rests  upon  the  Government  to  make 
out  its  case  by  clear  and  satisfactory  testimony.  I  repeat, 
the  burden  of  proof  is  upon  it,  and  the  burden  continues  to  be 
upon  it  throughout  the  case.  It  is  not  required  to  furnish 
evidence  beyond  a  reasonable  doubt,  but  it  is  required  to  fur- 
nish clear  and  satisfactory  evidence  of  all  the  facts  necessary 
to  make  out  its  case.  The  act  requires  couplers  at  both  ends 
of  the  car  that  shall  couple  automatically  by  impact,  and 
couplers  that  may  be  uncoupled  without  the  necessity  of  going 
between  the  cars ;  this  requires  that  there  shall  be  levers,  either 
a  lever  going  entirely  across  the  end  of  the  car,  or  a  lever  up- 
on one  side,  which  operates  the  mechanism  of  the  coupler  so 
that  it  may  be  separated  froim  the  other  car  without  the  neces- 
sity of  anybody  going  between.  And  it  is  necessary,  to  com- 
ply with  the  statute,  that  the  coupler  at  each  end  of  the  car 
shall  be  in  operative  condition.  That  duty  is  imposed  upon 
any  carrier  using  a  car  that  is  engaged  in  interstate  traffic. 
That  particular  point  of  time  to  which  your  attention  is 


A 


APPENDIX    G.  743 

directed  is  the  12th  day  of  November,  1906,  and  the  particular 
place  is  East  Penn  Junction  in  this  State,  and  from  there  to 
Cementon,  a  few  miles  away,  and  the  charge  is  that  a  par- 
ticular ear  was  defectively  equipped.  That  it  was  defectively 
equipped  seems  to  be  conceded,  as  I  understand,  by  the  de- 
fendant in  this  case ;  that  is,  that  one  or  both  couplers  were 
out  of  order.  Testimony  has  been  given  by  the  defendant's 
Mdtnesses  to  that  effect,  as  I  understand  it,  but  the  averment 
of  the  defendant  is  that  that  defect  was  remedied  and  that 
there  is  no  evidence  from  which  the  jury  may  properly  infer 
that  the  car  was  actually  moved  in  a  defective  condition.  It 
is  necessary  that  the  Government  shall  establish,  as  I  have 
said  to  you,  by  clear  and  satisfactory  evidence  that  the  car 
was  so  moved,  because  it  is  quite  clear  that  so*  long  as  a  car, 
no  matter  how  defectively  equipped  it  may  be,  remains  at 
rest,  it  does  no  harm-  and  can  not  do  any  harm,  and  does  not 
offend  against  the  statute.  It  is  when  it  is  actually  in  motion 
and  therefore  capable  of  doing  harm  to  the  operatives  upon 
the  train  that  the  act  applies,  and  therefore  it  is  necessary, 
and  it  is  the  vital  question  of  fact  in  the  case,  to  establish-  as  to 
whether  or  not  while  this  car  was  being  moved  it  was  in  a 
defective  condition.  Therefore  I  submit  those  questions  of 
fact  to  you  for  your  determination.  Did  the  Lehigh  Valley 
Railroad  transport  or  haul  this  car  from  East  Penn  Junction 
to  Cementon,  and  if  they  did,  during  that  period  was  it  de- 
fectively equipped? 

I  have  not  heard  any  argument  made  to  j^ou  with  regard 
to  the  question  of  reasonable  care  and  diligence.  The  question 
is,  however,  raised  by  one  of  the  points  that  is  presented  to 
me  by  the  defendant,  and  therefore  I  say  to  you  in  a  word 
that  the  question  of  reasonable  care  aiid  diligence  that  may 
have  been  exercised  by  the  defendant  is  not  a  matter  for  your 
consideration.  As  I  understand  this  statute,  the  railroad  com- 
pany is  bound  to  discover  defects  if  they  exist,  under  the 
circumstances  as  they  have  been  offered  to  us  upon  this  trial. 
I  am  not  dealing  with  anything  except  the  facts  that  are  now 
before  us.    Here  is  a  case  in  which  this  car  has  been  shown  to 


74:4  FEDERAL  SAFETY  APPLIANCE  ACT. 

have  been  at  rest  at  East  Penn  Junction  for  a  number  of 
hours,  and  therefore  when  there  was  an  opportunity  to  inspect 
upon  the  part  of  the  railroad  company.  Now,  under  such 
circumstances,  my  reading  of  the  statute  is  that  it  imposes  up- 
on the  company  the  duty  to  find  the  defects  if  defects  exist, 
and  that  it  must  find  them  at  its  peril.  If  its  inspectors  failed 
to  find  them,  then  the  liability  for  the  penalty  exists  if  the 
car  is  afterwards  moved  without  having  the  defects  repaired. 
That,  as  I  understand,  is  the  case  for  your  determination.  If 
you  are  not  satisfied  from  all  the  evidence  in  the  case  that 
the  Government  has  by  clear  and  satisfactory  evidence  made 
out  that  this  car  was  hauled  in  a  defective  condition  between 
East  Penn  Junction  and  Cementon,  then  you  ought  to  find 
in  favor  of  the  defendant.  If  they  have  satisfied  you  that 
this  car  was  so  defective  at  the  time  when  it  left  East  Penn 
Junction  that  it  could  not  be  automatically  coupled  and  could 
not  be  uncoupled  without  the  necessity  of  somebody  going 
between  the  cars  to  perform  that  operation,  then  your  ver- 
dict ought  to  be  in  favor  of  the  United  States  for  the  sum 
of  $100. 

Verdict  for  the  Government. 


THE    UNITED     STATES    v.    PHILADELPHIA    AND 
READING  RAILWAY  COMPANY. 

[160   Fed.   696.] 
(Motion   for   new   trial   reported   at   102   Fed.   Eep.   -105.) 

In  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania. 

December  Term,  1906. 

Bedded  March  11,  J90S. 

1.  An  actir.n  brouyht  to  recover  the  penalty  provided  for  in  the  Safety 

Appliance  Act  is  not  a  criminal  case. 

2.  'J'lie  fJovernment  need  not  prove  its  case  l)eyond  a  reasonable  doubt; 

it  is  sunieient  if  it  furnishes  clear  and  satisfactory  evidence  of  all 
the  necessary  facts. 


APPENDIX    G.  745 

3.  The  statute  requires  as  to  couplers  that  the  apparatus  on  each  end 

of  every  car  shall  be  in  operative  condition. 

4.  In  order  to  constitute  a  violation  of  the  Saftey  Ajjpliance  Act,  the 

car  must  be  moved  in  a  defective  condition. 

5.  Where  a  car,  which   had  been  at  rest  at  a  station   for  a   period  of 

time,  is  taken  out  upon  the  road  in  a  defective  condition,  the  car- 
rier is  liable  for  the  penalty,  and  it  is  wholly  immaterial  whether 
the  defendant  knew  of  the  defect  or  could  have  ascertained  its  con- 
dition by  the  exercise  of  reasonable  care;  in  such  a  case  the  carrier 
must  find  the  defect  at  its  peril. 

STATEMENT   OF   FACTS. 

This  was  an  action  brought  by  the  United  States  to  re- 
cover three  penalties  of  $100  each  alleged  to  have  been 
incurred  by  the  defendant  in  hauling  on  November  12.  1906, 
Lehigh  Valley  car  No.  83759,  November  13,  1906,  Lehigh 
Valley  car  No.  69609,  and  on  September  26,  1906,  its  own  No. 
49786,  from  AUentown,  Pa.,  with  the  coupling  and  un- 
coupling apparatus  on  one  end  of  each  car  in  a  defective 
condition,  in  that  the  lock  pin  or  lock  block  was  disconnected 
from  the  uncoupling  lever.  Two  Government  inspectors  of 
safety  appliances  found  these  cars  in  the  defendant's  yard 
at  AUentown  and  after  at  least  half  an  hour's  iDterval  the 
defendant  hauled  the  cars  in  the  defective  condition.  The 
defendant  offered  evidence  that  in  the  ordinary  course  of 
its  business  it  had  inspectors  whose  duty  it  was  to  inspect 
cars  moved  by  it  and  if  any  defects  were  found  such  defects 
were  noted  in  an  inspection  book  kept  for  that  purpose ;  that 
it  had  examined  these  books  and  found  no  entry  of  any 
defect  having  been  found  or  repaired. 

J.  Whitaker  Thompson,  United  States  attorney;  John 
C.  SwARTLEY,  assistant  United  States  attorney;  Luther  M. 
Walter,  special  assistant  United  States  attorney  for  plaintiff. 

James  F.   Campbell,  esq.,  for  defendant. 

Hon.  John  B.  McPherson,  Judge   (charging  jury)  : 

Gentlemen  of  the  jury:  This  is  an  action  brought  by  the 
United  States,  as  no  doubt  you  understand,  to  recover  the 


746 


FEDERAL  SAFETY  APPLIANCE  ACT. 


sum  of  $300,  being  a  penalty  of  $100  for  the  use  by  the 
defendant  company  of  each  of  three  cars,  which  it  is  said 
were  defectively  equipped  in  violation  of  the  act  of  Congress 
which  is  ordinarily  known  as  the  Safety  Appliance  Act.  There 
is  only  one  portion  of  it  to  which  your  attention  need  be 
directed,  and  that  is  the  second  section  of  the  act,  which 
provides,  in  substance,  that  no  common  carrier  may  haul  or 
permit  to  be  hauled  or  used  on  its  line  any  car  used  in  mov- 
ing interstate  traffic  not  equipped  with  couplers  coupling 
automatically  by  impact  and  which  can  be  uncoupled  with- 
out the  necessity  of  men  going  between  the  ends  of  the  cars. 
The  meaning  of  that  section  is  clear  enough.  The  direction 
of  Congress  is,  that  any  common  carrier,  such  as  a  railroad, 
must  equip  its  cars  so  that  there  shall  be  at  both  ends  a 
coupler  which  will  couple  automatically  by  impact  when  it 
comes  in  contact  with  another  car,  and  which  may  be  un- 
coupled also  from  the  side  without  the  necessity  of  a  man 
going  between  the  ends  of  the  two  cars  in  order  to  perform 
that  operation.  That  requires  that  each  car  taken  separately 
shall  be  complete,  completely  equipped;  that  is  to  say,  it  re- 
quires that  the  couplers  at  both  ends  shall  be  in  good  order. 
It  is  not  sufficient,  under  this  act  of  Congress,  that  one 
coupler  should  be  in  good  order  and  the  other  should  be  de- 
fective, although  it  appears  from  the  testimony  in  the  case 
that  under  certain  circumstances  even  if  one  of  the  couplers 
is  defective  the  process  of  coupling  may  nevertheless  take 
place,  provided  the  coupler  upon  the  car  with  which  the  de- 
fective car  comes  in  contact  is  in  good  order.  If  the  two 
ends  that  come  together  were  both  out  of  order,  then  the 
coupling  could  not  take  place  automatically,  but  if  one  of 
them  is  in  good  order  while  the  other  is  not,  then,  under  cer- 
tain circumstances,  the  coupling  may  take  place  automatically 
just  the  same  as  though  both  cars  were  thoroughly  equipped. 
But,  however  that  may  be,  the  act  of  Congress  does  not 
permit  such  a  situation  to  exist.  It  requires  that  each  car 
taken  by  itself  shall  have  the  couplers  at  both  ends  in  good 


APPENDIX    G. 


747 


order,  so  that  at  each  end  the  coupler  may  perform  its  ser- 
vice in  the  manner  directed  by  this  statute — that  is  to  say, 
automatically  by  the  impact  of  the  two  cars.  And  it  also 
requires  that  the  couplers  shall  be  in  such  order  that  the 
cars  may  be  uncoupled  without  the  necessity  of  somebody 
going  between  the  cars;  that  is  done  by  the  use  of  levers. 
In  some  instances  the  lever  comes  entirely  across  the  ends  of 
the  car,  so  that  at  whichever  side  the  brakeman  or  employee 
happens  to  be  standing  he  may  perform  whatever  operation 
is  necessary  for  the  purpose  of  uncoupling.  On  some  of  the 
cars,  perhaps  the  most  of  them,  as  the  testimony  would  seem 
to  indicate,  I  believe  it  is  only  upon  one  side,  and  then,  of 
course,  they  can  only  be  used  from  that  side,  but  neverthe- 
less they  can  be  so  used.  That  is  the  provision  of  the  statute. 
Of  course,  you  will  see  at  once — perhaps  you  have  seen 
already,  if  you  have  been  thinking  at  all  about  the  case — 
that  some  difficult  questions  might  arise  as  to  when  common 
carriers  might  be  liable,  and  it  is  very  easy  to  conceive  of 
situations  in  which  it  would  be  hard  to  hold  them  liable 
under  the  strict  letter  of  the  law.  For  example,  suppose  a 
oar  started  from  the  point  of  shipment  in  perfectly  good 
order,  and  then  through  no  fault  of  the  carrier  something 
happened  to  the  coupler  while  the  journey  was  in  progress. 
Of  course,  under  the  strict  letter  of  the  law  every  minute 
the  car  was  in  use  after  that  time  there  would  be  a  violation 
of  the  law;  but,  I  say,  that  would  present  a  hard  case,  and 
if  the  carrier,  under  the  proper  construction  of  this  statute, 
is  liable  under  such  circumstances,  of  course,  there  is  a  certain 
hardship  about  the  situation.  But  we  have  nothing  to  do 
with  a  case  of  that  kind.  That  may  safely  be  left  to  be 
dealt  with  when  the  time  comes.  I  give  you  that  as  an  illus- 
tration, and  others  might  be  easily  thought  of.  We  are 
dealing  with  the  particular  situation  disclosed  by  the  evi- 
dence, and  the  jury  must  confine  itself  to  that,  as  I  intend 
to  do  in  what  I  have  to  say  to  you. 

Here  is  a  case  where  a  certain  number  of  cars,  constituting 


74S 


FEDERAL  SAFETY  APPLIANCE  ACT. 


a  train  used  in  interstate  traffic — and  about  that  matter  there 
is  no  'Controversy — are  at  rest  for  a  certain  len^h  of  time; 
in  all  cases  for  more  than  an  hour,  in  some  cases  for,  I  think, 
several  hours;  but,  at  all  events,  in  all  of  these  three  cases 
at  rest  for  more  than  an  hour,  and  therefore  affording  an 
opportunity  for  inspection  for  the  discovery  of  defects  in 
these  automatic  couplers.  In  a  case  like  that  I  instruct  you 
that  it  is  the  carrier's  duty  to  find  any  defects  that  may 
exist,  and  if  the  carrier  fails  to  find  them,  then  the  carrier 
is  liable  for  the  penalty  imposed  by  the  statute;  because  if 
the  train  is  used  afterwards  with  the  coupler  out  of  order, 
then,  of  course,  under  the  precise  letter  of  the  statute,  the 
carrier  is  using  a  coupler  that  can  not  be  coupled  automatic- 
ally by  impact  or  can  not  be  uncoupled  without  somebody 
going  between  the  cars,  or  perhaps  neither  operation  can 
be  performed  as  the  statute  contemplates.  In  other  words, 
the  question  of  diligence  or  carefulness  on  the  part  of  the 
carrier  in  inspecting  the  cars  has  nothing  at  all  to  do  with 
the  matter  now  before  you.  The  obligation  is  laid  upon  the 
carrier  by  the  statute  to  find,  in  effect,  any  defect  that  may 
exist,  when  it  has,  as  it  had  under  these  circumstances,  the 
opportunity  to  discover  it ;  and  if  its  inspectors  do  not  dis- 
cover it,  then  the  carrier  is  liable  for  those  defects  and  for 
the  penalty  that  is  imposed  for  the  use  of  the  car  having 
such  defects. 

That  leaves,  therefore,  for  your  consideration,  in  each 
of  these  three  cases  the  question  of  fact  whether  these  cars, 
or  either  of  them,  were  defective.  You  have  heard  the  two 
inspectors  in  the  service  of  the  Interstate  Commerce  Com- 
mission upon  that  point,  and  there  is  other  testimony  of- 
fered by  the  defendant  carrier  which  would  tend  to  show 
that  they  were  mistaken,  and  you  will  have  to  determine 
what  is  the  fact.  They  may,  perhaps,  have  mistaken  some 
other  car  for  the  one  that  is  spoken  of  here,  or  they  may 
not  have  discovered  the  things  that  they  said  they  did  dis- 
cover; instead  of  Ihc  couplers  being  out  of  order,  they  may 


Ai-ir-KMOiX    ii. 


7-19 


have  been  in  order ;  and  those  are  questions  of  fact  which 
I  submit  to  the  jury  for  their  determination. 

There  are  three  sej^arate  charges  here,  and  it  is  in  the 
power  of  the  jury,  as  they  may  find  the  evidence  to  indicate, 
to  find  either  that  the  carrier  should  pay  a  penalty  of  $300 
or  of  $200  or  of  $100,  or  that  it  should  pay  nothing,  accord- 
ing as  they  may  find  that  one  or  more  of  these  cars  were 
defective  or  as  they  may  find  that  they  were  all  in  the  order 
contemplated  by  the  statute. 

There  is  this  further  to  be  said :  This  is  what  is  called 
a  penal  statute;  that  is  to  say,  it  is  a  statute  that  imposes 
a  penalty.  It  is  not  a  statute  that  makes  a  criminal  prose- 
cution or  requires  a  criminal  prosecution,  or  permits,  in- 
deed, a  criminal  prosecution  for  the  violation  of  its  pro- 
visions, but  it  imposes  a  money  penalty.  The  rules  that 
apply,  therefore,  in  the  criminal  court  do  not  appl>'  here. 
It  is  not  necessary  that  the  United  States  should  prove  its 
case  beyond  reasonable  doubt.  As  you  very  well  understand, 
that  is  the  measure  of  proof  that  is  required  in  a  criminal 
case.  It  does  not  apply  here.  The  United  States  has  the 
burden  of  proof  upon  it  in  order  to  make  out  its  ease.  It 
has  the  burden  of  proof  from  the  beginning  to  the  end  of 
it.  It  never  shifts.  It  is  bound  to  make  out  its  case,  and  it 
is  bound  to  make  it  out  by  evidence  that  is  clear  and  satis- 
factory to  the  jury.  That  is  the  obligation  that  is  laid  upon 
it.  Not  by  evidence  which  is  of  that  high  degree  which 
we  describe  when  we  say  evidence  beyond  reasonable  doubt, 
but  it  is  bound  to  make  it  out  by  such  evidence  as  is  clear 
and  satisfactory,  and  by  that  degree  of  proof  to  make  out 
all  the  elements  which  go  to  constitute  the  charge.  If  the 
United  States  has  failed  to  come  up  to  that  standard,  then 
it  has  failed  in  this  case  as  to  one  or  more  or  all  of  these 
particular  charges,  because  that  obligation  rests  upon  it. 

That.  I  believe,  constitutes  all  the  instructions  that  I 
need  give  you  with  regard  to  this  ease.  They  cover,  so  far 
as  I  can  see,  all  the  points  upon  which  I  have  been  asked 


750  FEDERAL  SAFETY  APPLIANCE  ACT. 

to  give  3^ou  specific  instructions,  and  I  therefore  need  not 
confuse  you  by  reading  them  over  and  answering  them 
specially. 

The  jury  rendered  a  verdict    in    favor    of    the    United 

States  for  $300. 


UNITED    STATES    v.    PENNSYLVANIA    RAILROAD 

COMPANY. 

(Motion  for  new  trial,  reported  at  1G2  Fed.  Eep.  408.) 

(In  the  District  Court  of  the  United  States  for  the  Eastern  District  of 

Pennsylvania.) 

December  Term,  1906. 

Decided  March  18,  1908. 

1.  An  action  brought  to  recover  the  penalty  provided  for  in  the  Safety 

Appliance  Act  is  not  a  criminal  case. 

2.  The  Government  need  not  prove  its  case  beyond  a  reasonable  doubt; 

it  is  sufficient  if  it  furnishes  clear  and  satisfactory  evidence  of  all 
the  necessary  facts. 

3.  The  statute  requires  as  to  couplers  that  tlie  apparatus  on  each  end 

of  every  car  shall  be  in  operative  condition. 

4.  In  order  to  constitute  a  violation  of  the  Safety  Appliance  Act,  the 

car  must  be  moved  in  a  defective  condition. 

5.  Where  a  car,  which   had  been  at  rest  at  a  station  for  a  period  of 

time,  is  taken  out  upon  the  road  in  a  defective  condition,  the  car- 
rier is  liable  for  the  penalty,  and  it  is  wholly  immaterial  whether 
the  defendant  knew  of  the  defect  or  could  have  ascertained  its  con- 
dition by  the  exercise  of  reasonable  care;  in  such  a  case  the  carrier 
must  find  the  defect  at  its  peril. 

STATEMENT   OF    FACTS. 

This  is  an  action  brought  by  the  United  States  to  re- 
cover a  penalty  of  $100  on  ace-ount  of  an  alleged  violation 
of  the  safety-appliance  act. 

Inspectors  of  the  Interstate  Commerce  Commission 
testified  that  defendant  hauled  Boston  &  Albany  car  No. 
12485  from  West  Philadelphia  when  the  lock  set  was  dis- 


APPENDIX    G.  751 

connected  from  the  lock  block  on  one  end  of  the  car  and 
hung  loose  on  the  lift  chain.  All  the  parts  were  present, 
but  were  not  coupled  together,  so  that  the  lever  was  in- 
operative and  the  car  could  not  be  uncoupled  without  a  man 
going  between  the  cars  for  that  purpose.  The  defendant  of- 
fered evidence  that  it  had  inspectors  whose  duty  it  was  to 
examine  and  repair  defects;  that  when  defects  were  found 
an  entry  was  made  in  the  inspectors'  book;  that  as  to  this 
particular  car  no  entry  of  repairs  or  defects  had  been  made. 

J.  Whitaker  Thompson,  United  States  attorney;  John 
C.  SwABTLEY,  assistant  United  States  attorney;  Luther  M. 
Walter,  special  assistant  United  States  attorney,  for  the 
plaintiff. 

John  Hampton  Barnes,  esq.,  for  the   defendant. 

McPherson,  Judge,   (charging  jury). 

Gentlemen  of  the  jury:  Some  of  you,  perhaps  all  of 
you,  have  already  taken  part  in  similar  trials,  but,  at  all 
events,  you  have  listened  to  them,  and  it  is  almost  super- 
fluous for  me  to  go  over  what  I  have  already  said  two  or 
three  times.  Nevertheless,  I  will  say  very  briefly  what  ought 
to  be  said  with  reference  to  the  present  case. 

There  is  just  one  charge  here  against  the  Pennsylvania 
Railroad.  It  is  charged  with  having  out  of  order  one  safety 
appliance  upon  a  ear  in  its  possession.  It  was  not  one 
of  its  own  cars;  it  was  a  car  belonging  to  the  Boston 
&  Albany  Railroad ;  nevertheless,  that  makes  no  difference. 
As  you  know,  railroads  are  continually  interchanging 
ears;  and  the  act  of  Congres-s  makes  no  difference 
between  cars  that  are  owned  by  a  railroad  and  cars 
that  come  upon  its  system  and  are  hauled  by  it  over 
its  rails.  If  a  car  is  not  in  proper  operative-  condition,  it 
is  the  duty  of  the  railroad  to  refuse  to  receive  it,  as  it  has 
a  perfect  right  to  do.    After  receiving  it,  it  is  just  as  much 


752  FEDERAL  SAFETY  APPLIANCE  ACT. 

bound  by  its  condition  as  if  it  were  its  own  own  car  from 
the  beginning.  The  question  of  fact  here  for  your  deter- 
mination, about  which  there  is  conflicting  evidence,  is  the 
condition  of  this  car,  whether  or  not  it  was  out  of  order, 
whether  or  not  it  was  out  of  operative  condition,  and  that 
is  a  question  of  fact  that  you  must  resolve.  If  the  car  was 
in  order,  if  the  car  wais  in  such  a  condition  that  it  complied 
Avith  the  statute,  cf  course,  there  has  been  no  offense  com- 
mitted. The  second  section  of  this  act  under  consideration 
requires  that  the  cars  shall  be  so  fitted  with  safety  appliances 
that  when  the  two  cars  come  together  there  shall  be  an 
automatic  coupling,  by  the  mere  fact  of  their  coming  to- 
gether, the  impact  of  their  coming  together,  the  coupling 
shall  be  done  automaticalh^  and  it  also  requires  that  there 
shall  be  a  device  by  Avhich  uncoupling  may  be  performed 
without  the  necessity  of  sending  a  man  between  the  cars  to 
perform  that  operation  or  to  assist  in  it.  That  is  done 
necessarily  through  the  use  of  a  lever,  sometimes  of  a  lever 
that  runs  across  the  entire  end,  and  sometimes  of  a  lever 
that  runs  only  halfway  across,  and  is  as  has  been  testified 
to  you,  always  upon  the  left-hand  side  of  the  car  as  one 
faces  it.  Either  lever  complies  with  the  provision  of  the 
statute. 

Therefore,  was  this  car  in  that  condition?  You  have 
heard  the  testimony  of  the  witnesses  upon  the  stand,  the 
two  inspectors  who  are  in  the  service  of  the  Interstate  Com- 
merce Commission,  and  have  testified  to  you  what  they  say 
they  found.  You  have  heard  the  testimony  of  the  other 
witnesses  with  regard  to  inspection,  such  inspection  as  was 
made  by  the  Pennsylvania  Railroad  Company,  and  from 
the  testimony  from  both  sides,  taken  together,  you  must  de- 
termine whether  this  car  was  in  operative  condition  as  re- 
quired by  the  statute.  I  have  just  explained  to  you  what  is 
required.  If  it  was  in  that  condition,  then,  as  a  matter  of 
course,  the  defendniit  lias  not  committed  any  offense  for 
which  a  i)enalty  could  be  imposed.     It  is  necessary  that  both 


APPENDIX    G.  r.).) 

ends  of  every  car  should  be  completely  equipped  with  de- 
vices that  are  in  operative  condition.  It  is  not  enough 
that  one  end  shall  be  in  good  order  and  the  other 
end  not  in  good  order.  Both  ends,  under  the  statute 
as  I  construe  it,  must  be  in  good  worliing  condition. 
It  is  the  duty  of  the  United  States  in  this  suit  also 
to  satisfy  you  by  clear  and  satisfactory  evidence  that 
these  devices,  or  one  of  them,  were  out  of  order.  The 
burden  of  proof  is  upon  the  United  States,  and  it 
rests  upon  it  throughout  the  course  of  the  trial.  It  is 
not  bound  to  show  to  you  beyond  reasonable  doubt,  as  would 
be  the  case  if  we  were  trying  an  indictment  in  a  criminal 
case — if  this  defendant  was  here  on  a  criminal  charge.  I 
say  it  is  not  necessary  that  the  measure  of  proof  should 
rise  to  that  degree,  beyond  reasonable  doubt,  but  it  is  neces- 
sary, this  being  an  action  for  a  penalty  that  the  United  States 
should  take  up  the  burden  and  carry  it,  showing  by  clear  and 
satisfactory  evidence  that  all  the  elements  in  this  offense 
were  present.  If  the  testimony,  therefore,  is  not  of  that 
quality,  the  United  States  has  failed,  and  your  verdict  would 
have  to  be  for  the  defendant. 

Let.  me  say  also  that  there  is  no  question  in  the  case 
for  your  consideration  concerning  the  measure  of  care  or 
diligence  that  the  defendant  may  have  exercised  with  re- 
gard  to  inspection.  In  my  construction  of  the  statute,  that 
is  not  a  matter  which  the  act  of  Congress  makes  necessary 
for  consideration.  As  I  understand  the  law.  Congress  has 
required  a  common  carrier  engaged  in  interstate  commerce 
to  see  that  these  devices  are  in  order  under  conditions  such 
as  are  here  before  us.  I  am  not  speaking  now  of  accidents 
that  might  happen  to  them  while  they  were  in  the  course 
of  transportation,  when  it  would  be  impossible  for  anj^body 
to  know  that  they  were  out  of  order  or  to  repair  them,  but 
I  am  speaking  of  a  condition  that  may  exist  while  the  cars 
are  at  rest  and  when  an  opportunity  is  afforded  for  the 
process  inspection.  That  was  the  case  here,  according  to 
the  undisputed  evidence.     This  car  and  the  train  of  which 


754  FEDERAL  SAFETY  APPLIANCE  ACT. 

it  was  part  lay  at  the  Mantua  yards  for  some  hours — I  do 
not  know  for  how  long  exactly— the  precise  time  is  not  im- 
portant, but  an  opportunity  was  afforded,  at  all  events,  for 
inspection.  That  being  so,  in  my  construction  of  the  statute, 
the  duty  rested  upon  the  carrier  to  find  any  defect  that 
existed,  and  if  the  defect  was  there  and  the  carrier  failed 
to  find  it,  it  would  be  liable  to  the  penalty,  even  although 
it  made  an  inspection  and  made  it  by  careful  men,  who  per- 
formed their  duty  according  to  the  best  of  their  ability.  The 
fact  that  they  failed  to  find  it  would,  while  perhaps  not  a 
fault  in  one  sense,  nevertheless  expose  the  carrier  to  the 
penalty.  So  that  the  whole  case  depends  upon  what  you  find 
the  question  of  fact  to  be.  Was  this  car  out  of  operative 
condition  at  the  time  testified  to  by  the  witnesses?  I  repeat, 
the  burden  of  proof  is  on  the  Government  to  show  you  by 
clear  and  satisfactory  evidence  that  it  was  out  of  order  at 
one  or  both  ends,  and  if  the  Government  has  not  so  satisfied 
you.  then  your  verdict  must  be  for  the  defendant.  If, 
however,  it  has  satisfied  you  that  this  was  out  of  order,  that 
one  or  both  ends,  of  this  coupling  device  were  out  of  order, 
then  your  verdict  should  be  in  favor  of  the  United  States 
for  the  sum  of  $100. 

The  jury  rendered  a  verdict  in  favor  of  the  United  States 
for  $100. 


UNITED  STATES  v.  TERMINAL  RAILROAD  ASSOCIA- 
TION OF  ST.  LOUIS. 

(In  the  District  Court  of  the  United  States  for  the  Eastern  District  of 
Missouri,  Eastern  Division.) 

Decided  June  3,  1908. 

(Syllabus  by  the  court.) 

1.  An  action  brought  to  recover  a  penalty  under  the  Safety  Appliance 
Act  is  civil. 


APPENDIX    G. 


755 


2.  It  makes  no  difference  under  the  law  whether  the  chains  were  broken 
actually  in  the  links  or  were  disconnected;  they  were  in  point  of 
fact  inoperative,  and  if  the  railroad  company  permitted  the  cars 
to  be  hauled  while  the  couplers  were  inoperative,  then  under  the 
statute  it  is  guilty. 

The  Interstate  Commerce  Commission  lodged  with  the  Uni- 
ted States  attorney  information  showing  four  violations  of 
the  safety-appliance  law  by  the  Terminal  Railroad  Associa- 
tion of  St.  Louis.  Defendant  made  general  denial  as  to  all 
the  counts  and  offered  evidence  to  show  that  the  cars  were 
equipped  with  automatic  couplers,  but  the  chains  connecting 
the  lock  pins  to  the  uncoupling  levers  were  disconnected  and 
needed  only  to  be  connected  to  make  the  appliance  available. 

Henry  W.  Blodgett,  United  States  attorney;  Truman 
P.  Young,  assistant  United  Spates  attorney,  and  Ulysses 
Butler,  special  assistant  United  States  attorney,  for  the 
United  States. 

Edwin  W.  Lee    for  defendant. 

David  P.  Dyer,  District  Judge   (charging  jury)  : 

Gentlemen  of  the  jury,  this  is  a  proceeding  brought  by 
the  United  States  district  attorney  against  the  Terminal 
Railroad  Association  of  St.  Louis  to  recover  the  sum  of  $400. 
There  are  four  counts  in  the  complaint.  It  is  a  civil  action, 
provided  by  statute  for  such  cases.  It  is  based  upon  section 
2  of  an  act  to  promote  the  safety  of  employees  and  travelers 
upon  railroads  by  compelling  common  carriers  engaged  in 
interstate  commerce  to  equip  their  cars  with  automatic 
couplers  and  continuous  brakes  and  their  locomotives  with 
driving-wheel  brakes,  and  for  other  purposes.  That  act  was 
approved  ]\Iarch  2,  1893,  and  amended  by  an  act  of  April 
1,  1896.  The  first  and  second  sections  of  the  act  are  as 
follows : 


756  FEDERAL  SAFETY  APPLIANCE  ACT. 

That  from  ana  after  the  first  day  of  January,  1898,  it  shall  be  un- 
lawful for  any  common  carrier  engaged  in  interstate  commerce  by  rail- 
road to  use  on  its  line  any  locomotive  engine  in  moving  interstate  traf- 
fic not  equipped  with  a  power  driving-wheel  brake  and  appliances 
for  operating  tlie  train-brake  system,  or  to  nm  any  train  in  sucli  traffic 
after  said  date  that  has  not  a  sufficient  number  of  cars  in  it  so  equipped 
with  power  or  train  brakes  that  the  engineer  on  the  locomotive  drawing 
such  train  can  control  its  speed  witliout  requiring  brakemen  to  use  the 
common  hand  brake  for  that  purpose. 

Section  2  of  the  act  under  which  this  complaint  is  made 
is  as  follows: 

That  on  and  after  the  first  day  of  January,  1808,  it  shall  be  unlawful 
for  any  such  common  carrier  to  haul  or  permit  to  be  hauled  or  used  on 
its  line  any  car  used  in  moving  interstate  traffic  not  equipped  with 
couplers  coupling  automatically  by  impact,  and  which  can  be  uncoupled 
without  the  necessity  of  men  going  between  the  ends  of  the  cars. 

Section  6  of  the  act  provided: 

That  any  such  common  carrier  using  any  locomotive  engine,  running 
any  train,  or  hauling  or  permitting  to  be  hauled  or  used  on  its  line  any 
car  in  violation  of  any  of  the  provisions  of  this  act,  shall  be  liable  to 
a  penalty  of  one  hundred  dollars  for  each  and  every  such  violation,  to 
be  recovered  in  a  suit  or  suits  to  be  brought  by  the  United  States  Dis- 
trict Attorney  in  the  District  Court  of  the  United  States  having  juris- 
diction in  the  locality  where  such  violation  shall  have  been  committed. 

The  fact  is  conceded  that  these  cars  were  engaged  in  in- 
terstate traffic.  The  cars  were  destined  to  New  York  and 
Philadelphia,  received  here  over  some  railroad  from  Kansas 
City.  So  there  is  no  question  about  the  cars  being  engaged 
in  interstate  traffic. 

Congress  has  seen  proper  to  enact  this  statute,  made  for 
the  purpose  of  protecting  from  injury  the  employees.  As 
to  the  wisdom  of  the  act  you,  nor  I,  have  nothing  to  do. 
It  is  the  law  of  the  land.  It  is  charged  in  the  first  count 
of  this  petition  (and  each  of  the  other  counts  is  the  same, 
with  the  exception  of  the  cars  named  in  the  respective 
counts)  that  on  or  al)()iit  the  8th  day  of  May.  1007.  defendant 
hauled  th(!  said  car  with  said  interstate  traffic  over  its  line 
of  railroad   from   St.   Louis,   within   the   State   of  Missouri, 


APPENDIX    G.  757 

within  the  jurisdiction  of  this  court,  when  the  coupling  and 
uncoupling  apparatus  on  the  "A"  end  and  the  "B"  end 
of  such  car  was  out  of  repair  and  inoperative,  the  chains 
connecting  the  lock  pins  or  lock  blocks  with  the  uncoupling 
levers  being  broken  on  said  ends  of  said  car. 

The  main  charge  here  is  that  the  cars  were  in  a  condition 
which  made  them  inoperative  under  the  provisions  of  this 
act,  and  I  charge  you  that  it  makes  no  difference  whether  the 
chains  were  broken  in  fact  in  the  links  of  the  chain  or  were 
merely  disconnected.  It  was  the  duty  of  the  railroad  com- 
pany and  its  employees  to  see  that  those  chains  were  in 
condition  so  that  they  could  be  used  as  this  act  contemplates. 
They  should  be  in  such  condition  that  they  could  be  used 
without  necessitating  a  man  going  in  between  the  cars.  I 
fail  to  find  any  difference,  under  the  provisions  of  this  act, 
between  a  chain  that  happens  to  be  broken  in  a  link  and 
a  chain  that  is  uncoupled  and  inoperative. 

You  heard  the  testimony  that  was  given  here  yesterday. 
One  witness  testified  that  some  of  these  chains  were  broken 
and  some  were  disconnected.  Another  witness  testified  that 
he  did  not  discover  the  broken  chains,  but  did  discover  that 
they  were  disconnected.  The  witnesses  for  the  defendant 
testified  that  the  chains  were  not  broken  but  were  all  dis- 
connected. There  is  no  dispvite,  therefore,  that  the  chains 
were  uncoupled;  and  it  makes  no  difference  under  the  law 
whether  the  chains  were  broken  actually  in  the  links  or 
were  disconnected;  they  were,  in  point  of  fact,  inoperative, 
and  if  the  railroad  company  permitted  them  to  be  used  while 
they  were  inoperative,  then  under  this  statute  it  is  guilty. 

I  therefore  charge  you  that  under  all  the  evidence  in  this 
case  the  plaintiff  is  entitled  to  recover  on  each  count  of  its 
complaint  in  the  sum  of  $100,  and  the  court  instructs  you 
ihat  under  the  law  and  the  evidence  and  the  pleading  you 
must  return  a  verdict  in  favor  of  the  plaintiff  in  the  sum  of 
$100  on  each  of  the  four  counts  of  the  complaint. 


758 


FEDERAL    SAFETY    APPLIANCE    ACT. 


THE    UNITED    STATES    v.    ATCHISON,    TOPEKA    & 
SANTA  FE  RAILWAY  COMPANY. 

(In  the  District  Court  of  the  United  States  for  the  Southern  District 
of  California.) 

(Syllabus  by  the  court.) 

1.  The   Federal   Safety   Appliance   Act  requires  carriers   subject  to   the 

act  to  find  at  their  peril  and  repair  defects  in  the  safety  appliances 
embraced  within  the  act.  If  a  carrier  fails  to  find  and  repair  such 
defects  it  is  liable  for  the  statutory  penalty. 

2.  It  is  incumbent  upon  the  Government  to  make  out  its  case  by  clear 

and  satisfactory  evidence. 

Oscar  La\\t,er,  United  States  attorney;  Aloysius  I.  INIc- 
CoRMiCK,  assistant  United  States  attorney,  and  Roscoe  F. 
Walter,  special  assistant  Uyiited  States  attorney,  for 
plaintiff. 

E.  W.  Camp,  for  defendant. 

Bedded  June  6,  1908. 

Wellborn.  District  Judge    (charging  jury)  : 

Gentlemen  of  the  jury:  The  circumstances  of  this  case 
do  not  call  for  nor  admit  of  any  protracted  or  elaborate 
statement  or  explanation  of  legal  principles,  and  I  shall  not 
needlessly  consume  time,  therefore,  in  preparing  written 
charges.  Indeed,  I  think  that  the  mere  reading  of  the  pro- 
visions of  the  safety-appliance  act  of  Congress,  on  which 
the  Government  relies  for  recovery  in  this  case,  will  enable 
you  intelligently  to  perform  your  duties  as  jurors  and  pass 
upon  the  facts.  I  will  suggest  to  you  what  those  duties  are, 
and  indicate  the  correct  method  of  their  performance. 

The  act  of  Congress  in  question  seems  to  have  been  passed 
in  1893 — the  amendment.    The  fir.st  section  is  as  follows: 


APPENDIX    G. 


759 


Be  it  enacted  by  the  Senate  and  the  House  of  Representatives — 

I  will  only  read  the  pertinent  portions  of  the  section  to 
you — 

Be  it  enacted  by  the  Senate  and  the  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled  That  from  and  after 
the  first  day  of  January,  eighteen  hundred  and  ninety-eight,  it  shall  be 
unlawful  for  any  common  carrier  engaged  in  interstate  commerce  by 
railroad  to  use  on  its  line  any  locomotive  or  engine,  in  moving  inter- 
state traffic,  not  equipped  with  a  power  driving-wheel  brake. 

Sec.  2.  That  on  and  after  the  first  day  of  January,  eighteen  hundred 
and  ninety-eight,  it  shall  be  unlawful  for  any  such  common  carrier  to 
haul,  or  permit  to  be  hauled,  or  used  on  its  line,  any  car  used  in  moving 
interstate  traffic,  not  equipped  with  couplers  coupling  automatically  by 
impact,  and  which  can  be  uncoupled  without  the  necessity  of  men  going 
between  the  ends  of  the  cars. 

Sec.  4.  That  from  and  after  the  first  day  of  July,  eighteen  hundred 
and  ninety-five,  or  until  otherwise  ordered  by  the  Interstate  Commerce 
Commission,  it  shall  be  unlawful  for  a  railroad  company  to  use  any  car 
in  interstate  commerce  that  is  not  provided  with  grab  irons  or  hand- 
holds in  the  ends  and  sides  of  such  car,  for  the  security  of  the  men  in 
coupling  and  uncoupling  cars. 

Sec.  6.  That  any  such  common  carrier  using  any  locomotive  engine 
running  any  train,  or  hauling  or  permitting  to  be  hauled  or  used  on  its 
line  any  car  in  violation  of  any  of  the  provisions  of  this  act,  shall  be 
liable  to  a  penalty  of  one  hundred  dollars  for  each  and  every  sucli  vio- 
lation, to  be  recovered  in  a  suit  or  suits  to  be  brought  by  the  United 
States  District  Attorney  of  any  District  Court  of  the  United  States 
having  jurisdiction  of  the  locality  where  such  violation  shall  have  been 
committed.  It  shall  be  the  duty  of  said  District  Attorney  to  bring  suits 
upon  duly  verified,  etc. 

Those  provisions  that  I  have  read  are  the  pertinent  pro- 
visions of  the  law. 

There  is  no  controversy  that  the  defendant,  at  the  times 
mentioned  in  the  complaint,  was  a  common  carrier  engaged 
in  interstate  commerce  by  railroad,  and  that  the  engines  and 
cars  mentioned  in  said  complaint  were  used  in  hauling  and 
moving  interstate  traffic,  and  the  only  questions  for  you  to 
determine  are  whether  or  not  the  appliances  on  the  engines 
and  cars  mentioned  in  the  complaint  were  out  of  order,  as 
alleged  in  the  complaint.  Whether  or  not  the  defendant 
inspected  said  engines  and  cars,  and  was  diligent  and  care- 
ful in  inspecting  them,  is  not  a  matter  you  need  concern 
yourselves  about.  The  act  requires  defects  in  the  appliances 
to  be  found  at  the  peril  of  the  company,  and  if  it  fails  to 
find  them  the  company  is  responsible  for  the  penalty.     If 


760  FEDERAL  SAFETY  APPLIANCE  ACT. 

the  Government  has  not  made  out  its  ease  by  clear  and  satis- 
factory evidence  your  verdict  should  be  for  the  defendant. 
If,  however,  you  are  satisfied  from  the  evidence  that  either 
of  said  engines  or  cars  was  not  equipped  with  the  appliances 
required  by  the  acts  of  Congress  to  which*  I  have  called 
your  attention,  or  that  such  appliances  were  defective  and 
inoperative,  then  such  engine  or  car  was  out  of  order  in 
that  particular  respect,  and  your  verdict  on  the  count  re- 
lating thereto  should  be  for  the  Government.  You  can  find 
for  the  plaintiff  or  defendant  on  any  one  or  more  or  all 
of  the  counts,  as  the  evidence  seems  to  you  to  require. 
Verdict  for  plaintiff. 


UNITED    STATES   v.   THE    CINCINNATI,   HAMILTON 
&  DAYTON  RAILROAD  COMPANY. 

(In  the  District  Court  of  the  United  States  for  the  Northern  District 

of  Ohio.) 

Decided  June  2J,,  1908. 

(Syllabus  by  the  court.) 

The  Federal  Safety  Appliance  Law  lays  an  unqualified  duty  upon  a 
railroad  company  subject  to  the  act  to  keep  its  coupling  devices  in 
a  certain  condition  (Railroad  Company  v.  Taylor,  Administratrix, 
210  U.  S.  281),  and  when  an  employe  of  such  company  deliberately 
puts  such  devices  in  another  condition,  which  condition  the  law  un- 
dertakes to  prevent,  then  the  company  is  required  to  respond  under 
the  penalty  for  tlie  unlawful  act  of  its  employe. 

WiLLLVM  L.  Day,  United  States  attorney,  John  S.  Pratt, 
assistant  United  States  attorney,  and  Roscoe  F.  Walter, 
special  assistant  United  States  attorney,  for  the  United 
States. 

Julian  H.  Tyler,  for  defendant. 


APPENDIX    G. 


STATEMENT    OP   FACTS. 


761 


The  defendant  company  was  charged  with  hauling  upon 
its  railroad  its  own  engine  No.  90  when  it  was  not  equipped 
in  compliance  with  the  Federal  safety-appliance  law,  in  that 
the  uncoupling  lever  was  missing  from  the  "A"  end  of  the 
engine.  The  defense  was  made  that  inasmuch  as  the  un- 
coupling lever  had  been  removed  by  the  employees  of  the 
defendant  company  for  some  reason  best  known  to  them- 
selves and  without  the  order  or  consent  of  the  company, 
it  should  not  be  held  to  answer  for  such  act  of  its  employees, 
because  the  very  object  of  the  act  under  which  this  suit  is 
brought  is  to  secure  the  safety  of  such  employees. 

U.  S.  V.  C,  H.  &  D.  R.  R.  00. 

OPINION. 
(On  motion  by  plaintiff  for  judgment  on  the  pleadings.) 

Tayler,  District  Judge    (orally)  : 

I  suppose  that  the  administration  of  this  law  must  of  ne- 
cessity be  attended  with  a  certain  amount  of  strictness  of 
construction,  and,  in  many  cases,  of  hardship.  It  is  practical 
results  which  the  act  seeks  to  accomplish.  It  seeks  to  insure 
the  safety  of  employees,  in  so  far  as  that  may  be  accomplished 
by  regulating  coupling  devices  and  grab-irons.  It  is  per- 
fectly conceivable  that  in  four  cases  out  of  five  the  condi- 
tion in  which  the  grabiron  or  the  coupling  device  is  found 
may  be  due  to  the  carelessness  or  willful  act  of  one  of  the 
very  class  of  employees  whose  safety  is  sought  by  the  legis- 
lation. Where  an  act  lays  the  unqualified  duty  upon  a  rail- 
road company  to  keep  its  coupling  devices  in  a  certain  con- 
dition and  one  of  its  employees  deliberately  puts  it  in  another 
condition,  which  is  a  condition  that  the  law  undertakes  to 
prevent,  then  the  corporation  is  required  to  respond,  under 
this  penalty,  for  the  unlawful  act  of  its  employees. 


762  FEDERAL  SAFETY  APPLIANCE  ACT. 

I  do  not  see  how  we  can  escape  the  rule  of  law  which 
makes  the  corporation  responsible  for  the  acts  of  its  em- 
ployees, because  it  is  only  through  employees  as  its  repre- 
sentatives that  it  can  act  at  all.  From  the  standpoint  of 
practical  administration  of  the  law,  it  would  be  practically 
impossible  to  administer  it  if  it  should  be  held  that  it  was 
a  defense  to  a  charge  that  the  coupling  devices  were  not  in 
the  condition  which  the  law  requires,  or  that  a  grabiron  was 
in  a  condition  that  was  unlawful,  that  such  condition  was 
due  to  the  act  of  one  of  a  class  of  employees  for  whose  bene- 
fit and  protection  this  legislation  was  enacted,  and  the  cor- 
poration Avas  therefore  not  liable.  If  that  was  true,  the 
statute  would  be  in  many  cases  practically  inoperative. 

If  I  catch  the  spirit  of  this  law  as  that  spirit  has  been 
declared,  especially  in  this  latest  ease  decided  by  the  Su- 
preme Court  on  the  18th  of  May  (Railroad  Co.  v.  Taylor, 
admx.),  then  certainly  it  must  be  said  that  the  fact  that  the 
condition  in  which  the  lever  which  ought  to  be  attached  to 
a  coupling  device  is  found,  is  due  to  the  willful  act  of  an 
employee,  yet  since  th'6  result  is  the  failure  to  perform  an 
unqualified  duty  laid  upon  the  railroad  company  by  Congress, 
it  must  be  said  to  be  a  violation  of  the  law. 

It  will  be  necessary  to  sustain  the  motion  for  judgment 
on  the  pleadings,  and  an  exception  will  be  noted. 


UNITED  STATES   v.  ATCHISON,  TOPEKA   &  SANTA 
FE  RAILWAY  COMPANY. 

(In   the   United   States    District   Court   for    tlie    Northern    District   of 

California.) 

[167  Fed.  696.] 

Decided  December  1,  J90S. 

(Syllabus  apiM'ovxid  by  the  court.) 

1.  If  a  carrier  liauls  over   its  line  any  cars  wliich  can  nol  be  coupled 
aubomatically    by    impact,    either    by    reason    of    being    improperly 


APPENDIX    G.  763 

equipped,  or  the  equipment  being  out  of  order,  or  disconnected,  or 
otherwise  inoperative,  the  act  is  in  violation  of  the  Safety  .Appli- 
ance law. 

2.  The  Safety  Appliance  statute  applies  to  the  coupler  on  each  end  of 

every  car  subject  to  tlie  law,  and  it  is  wholly  immaterial  in  what 
condition  was  the  coupler  on  the  adjacent  car,  or  on  any  other  car 
or  cars,  to  wliich  eacli  car  sued  upon  was  or  was  to  be  coupled. 

3.  Carriers  are  required  immediately   to   repair   defects   in  cars  caused 

during  the  time  they  are  being  hauled,  if  they  can  do  so 
with  the  means  and  appliances  at  hand  at  the  time  and  place,  or 
when  such  condition  should  have  been  discovered  by  the  exercise 
of  reasonable  care.  If  requisite  means  are  not  at  hand,  carriers 
have  the  right,  without  incurring  the  penalty  of  the  law,  to  haul 
the  defective  car  to  the  nearest  repair  point  on  their  line.  But  if 
they  haul  such  car  from  a  repair  point,  they  are  liable  for  the  stat- 
utory penalty. 

4.  It  is  the  duty  of  the  carrier,  subject  to  the  Safety  Appliance  Acts, 

to  establish  reasonable  repair  points  along  its  line  for  the  making 
of  repairs  of  the  kind  necessary  to  comply  with  the  law.  At  such 
repair  points  there  should  be  the  material  and  facilities  to  make 
all  such  repairs. 

Alfred  P.  Black,  Assistant  United  States  attorney,  and 
Monroe  C.  List,  special  assistant  United  States  attorney, 
for  the  United  States. 

C.  L.  Brown  and  Horace  Pillsbury,  for  the  defendant. 

INSTRUCTIONS   TO    JURY. 

De  Haven,  District  Judge   (charging  jury)  : 

You  are  instructed  that  section  2  of  the  safety-appliance 
act  imposes  upon  the  defendant  an  unqualified  duty  to 
equip  its  cars  with  couplers  coupling  automatically  by  im- 
pact, and  which  can  be  uncoupled  without  the  necessity  of 
men  going  between  the  ends  of  the  cars:  and  if  the  defend- 
ant hauled  over  its  lines  of  railroad  any  cars  which  could 
not  be  so  operated,  either  by  reason  of  being  improperly 
equipped,  or  by  reason  of  the  original  equipment  being  out 
of  order,  or  disconnected,  or  otherwise  inoperative,  your 
verdict  should  be  for  the  Government  as  to  each  and  every 
car  so  hauled. 


764  FEDERAL   SAFETY   APPLIANCE   ACT. 

You  are  instructed  that  section  2  of  the  safety-appliance 
act  applies  to  the  coupler  on  each  end  of  every  car  subject 
to  the  law,  and  it  is  wholly  immaterial  in  what  condition  was 
the  coupler  on  the  adjacent  car,  or  on  any  other  car  or  cars, 
to  which  each  car  sued  upon  was  or  was  to  be  coupled.  The 
equipment  on  each  end  of  every  car  must  be  in  such  condi- 
tion that  whenever  called  upon  for  use  it  can  be  operated 
without  the  necessity  of  men  going  between  the  ends  of 
the  cars. 

You  are  instructed  that  in  actions  arising  under  the  safety- 
appliance  act  the  Government  is  only  required  to  prove  by 
a  fair  preponderance  of  the  evidence  the  existence  of  the 
defects  as  set  out  in  the  complaint. 

If  from  the  evidence  you  find  that  the  cars,  or  either  of 
them,  described  in  the  petition,  or  in  some  count  thereof, 
were  equipped  with  the  requisite  couplers  and  grab  irons, 
and  that  they  Vv^ere  in  the  condition  required  by  the  law 
when  they  were  received  by  the  defendant  to  be  hauled 
over  its  line  of  railroad  as  stated,  but  during  the  time  they 
were  being  so  hauled  the  couplers  or  grab  irons  from  any 
cause  became  injured  or  out  of  repair  upon  any  of  the  ears 
so  that  they  were  not  in  an  operative  condition,  then  the 
defendant  would  be  required  to  immediateh'  repair  said  de- 
fects and  put  the  appliances  in  operative  condition  if  it 
could  do  so  with  the  means  and  appliances  at  hand  at  the 
time  and  place  when  and  where  it  discovered  their  defective 
and  inoperative  condition,  or  when  such  condition  should 
have  been  discovered  by  the  exercise  of  reasonable  care  on 
the  part  of  its  agents  or  servants  charged  with  that  duty. 
But  if  it  did  not  at  such  time  and  place  have  the  requisite 
means  or  appliances  at  hand  to  remedy  such  defect  and  put 
the  couplers  and  grab  irons  in  operative  condition,  then  it 
would  have  the  right,  without  incurring  the  penalty  of  the 
law,  to  haul  such  cnr  or  cars  to  the  nearest  repair  point  on 
its  line  where  such  defects  could  be  repaired  and  the  appli- 
ances put  in  operative  condition.  But  if  such  defective  or 
inoperative  condition  of  the  couplers  and  grab  irons  existed 
at  a  repair  point  on   defendant's  line  or  at  a  place  where 


APPENDIX    G.  765 

such  defects  could  have  been  remedied,  then  if  it  hauled 
said  cars  from  such  place  in  such  condition  it  would  do  so 
at  its  peril  and  be  liable  for  the  statutory  penalty  for  so 
hauling  or  using  such  car  described  in  any  count  of  the 
petition. 

You  are  instructed  that  it  is  the  duty  of  a  railroad  com- 
pany, subject  to  the  provisions  of  the  safety  appliance  act, 
to  establish  reasonable  repair  points  along  its  line  of  railway 
for  the  making  of  repairs  of  the  kind  necessary  to  comply 
with  the  law;  that  is  to  say,  repair  points  at  places  where 
they  are  reasonably  required;  that  it  is  also  the  duty  of 
such  railroad  company  to  have  on  hand  at  such  repair  points 
the  material  and  facilities  necessary  to  make  all  such  repairs, 
and  that  such  railway  company  must  use  reasonable  fore- 
sight in  providing  material  and  facilities  for  such  purpose; 
and  if  the  jury  believes  that  the  defendant  hauled  any  car 
defective  as  to  safety  appliances  over  its  line  of  railroad 
from  any  such  repair  point,  where  by  the  exercise  of  rea- 
sonable diligence  and  foresight  such  repairs  could  have  been 
made,  your  verdict  should  be  for  the  Government  as  to  each 
and  every  car  so  hauled. 

You  are  instructed  that  if  the  defendant  hauled  any  car 
over  its  line  of  railroad  from  or  through  any  point  in  a  de- 
fective condition,  it  is  wholly  immaterial  that  the  defendant 
had  no  shops,  material,  or  facilities  for  repairing  the  defects 
at  that  place,  if  it  can  be  shown  that  said  ear  had  started 
from  a  repair  point  upon  the  line  of  defendant's  railroad 
in  the  same  defective  condition,  and  where  such  repairs  could 
have  been  made  had  the  defendant  exercised  reasonable  dili- 
gence and  foresight  in  providing  such  repair  point  with  the 
proper  material  and  facilities  for  the  making  of  all  repairs 
necessary  to  comply  with  the  safety  appliance  act,  your  ver- 
dict should  be  for  the  Government  as  to  each  and  every  car 
so  hauled. 

Your  verdict  should  be  for  the  Government  as  to  each 
and  every  car  so  hauled  upon  that  state  of  facts. 


766  FEDERAL   SAPETY   APPLIANCE   ACT. 

(The  jury  returned  a  verdict  for  the  United  States  on 
the  second,  fourth,  fifth,  and  eighth  causes  of  action,  and 
not  being  able  to  agree  as  to  the  balance  of  the  counts,  was 
discharged.) 


UNITED    STATES    v.    NEVADA    COUNTY    NARROW 
GAUGE  RAILROAD   COMPANY. 

(In  the  District  Court  of  the  United  States  for  the  Northern  District 
of  California. ) 

[167  Fed.  695.] 

Decided  l^iovemher  28,  1908. 

(Syllabus  by  the  court.) 

1.  In   an   action   brought   to    recover   the    statutory   penalty   under    the 

Safety  Appliance  Acts  a  preponderance  of  the  evidence  that 
the  defective  car  was  hauled  as  alleged  is  sufficient  to  charge  the 
defendant. 

2.  If  the  coupling  and  uncoupling  apparatus  on  a  car  is  so  constructed 

that  in  order  to  open  the  knuckle  when  preparing  the  coupler  for 
use  or  in  uncoupling  the  car  it  is  reasonably  necessary  for  a 
man  to  place  part  of  his  body,  his  arm,  or  his  leg  in  a  hazardous 
or  dangerous  position  such  car  is  not  equipped  as  required  by 
section  2  of  the  Safety  Appliance  Act. 

STATEMENTS  OF  FACTS. 

The  Interstate  Commerce  Commission  lodged  with  the 
United  States  attorney  information  showing  violations  of 
Safety  Appliance  Law  by  the  Nevada  County  Narrow 
Gauge  Railroad  Company.  The  declaration  was  in  two 
counts,  each  count  charging  a  violation  of  section  2  of  the 
statute,  the  allegation  being  that  the  couplers  were  nut  of 
repair  and  inoperative. 

Alfred  P.  Black,  assistant  United  States  attorney,  and 
Monroe  C.  List,  special  assistant  United  States  attorney  for 
the  United  States. 

Fred  Searls,  for  defendant. 


APPENDIX    G.  767 


INSTRUCTIONS  TO  JURY. 


DeHaven,  District  Judge    (charging  jury)  : 

The  statute  under  which  this  suit  is  being  prosecuted 
makes  it  unlawful  for  any  common  carrier  engaged  in  inter- 
state commerce  "to  haul  or  permit  to  be  hauled  or  used 
on  its  line  any  car  used  in  moving  interstate  traffic  not 
equipped  with  couplers  coupling  automatically  by  impact 
and  which  can  be  uncoupled  without  the  necessity  of  men 
going  between  the  ends  of  the  cars." 

The  complaint  in  this  case  charges  the  defendant  with  a 
violation  of  this  statute,  and  the  question  is  for  you  to  de- 
termine ;  it  is  a  simple  question  of  fact  for  you  to  determine. 

The  jury  is  instructed  that  if  it'  believes  from  a  prepon- 
derance of  the  evidence  that  the  defendant  hauled  the  car, 
as  alleged  in  the  first  count  of  plaintiff's  petition,  when  the 
coupling  and  uncoupling  apparatus  on  either  end  of  said 
car  was  so  constructed  that  in  order  to  open  the  knuckle 
when  preparing  the  coupler  for  use  it  was  reasonably  ne- 
cessary for  a  man  to  place  part  of  his  body,  his  arm,  or  his 
leg  in  a  hazardous  or  dangerous  position,  then  its  verdict 
should  be  for  the  Government. 

You  are  instructed  that  if  you  believe  from  a  preponder- 
ance of  the  evidence  that  the  defendant  hauled  the  car,  as 
alleged  in  the  first  count  of  plaintiff's  petition,  when  said 
car  was  not  equipped  with  couplers  coupling  automatically 
by  impact  and  which  could  be  both  coupled  and  uncoupled 
without  the  reasonable  necessity  of  a  man  going  between 
the  end  sills  of  said  cars,  then  your  verdict  should  be  for 
the  Government. 

There  are  two  counts  in  this  petition.  The  first  one  is 
the  only  one  that  is  contested ;  the  second  has  been  admitted 
by  the  defendant — that  is,  there  is  no  defense  to  it. 

The  form  of  the  verdict  is:  "We,  the  jury,  find  for  the" 


768  FEDERAL  SAPETY  APPLIANCE  ACT, 

plaintiff  or  defendant,  as  you  believe,  on  tlie  first  count  of 
the  petition,  and  for  the  plaintiff  on  the  second  count  of  the 
petition. 

Verdict  for  Government  on  both  counts. 


UNITED     STATES     v.    CHESAPEAKE     AND     OHIO 

RAILWAY. 

(In  the  District  Court  of  the  United  States,  Southern  District  of  West 

Virginia.)  , 

Decided  December  2,  190S. 

1.  A  suit  for  the  penalty  prescribed  in  section  6  of  the  federal  safety 

appliance  act  of  March  2,  1893,  as  amended  April  1,  1S9G,  as 
amended  March  2,  1903,  is  a  civil  action,  and  in  such  suit  to 
entitle  the  Governm.ent  to  recover  it  is  necessary  that  the  facts 
which  constitute  a  violation  of  the  act  be  proved  by  a  preponder- 
ance of  the  evidence,  and  not  beyond  a  reasonable  doubt. 

2.  The    statute   requires    that   the    coupler    on    each    end   of   every    car 

hauled  in  a  train  containing  interstate  commerce  shall  be  in 
operative  condition  as  required  by  the  act,  and  this  whether  the 
car  be  loaded  or  empty, 

3.  In  counting  the  cars  in  a  train  to  ascertain  the  percentage  of  cars 

oouipped  with  air  appliances,  as  required  by  the  act,  the  engine 
and  tender  are  to  be  counted  as  separate  and  distinct  cars. 

4.  If  a  railroad  company  subject   to  th.e  act  hauls  a  car  or  train  in  inter- 

state traific  not  equipped  as  required  by  the  statute  it  does  so  in 
violation  cf  the  law. 

Elliot  Nortiicott,  United  States  attorney;  H,  Delbert 
RuMMEL,  assistant  United  States  attorney;  Roscoe  F.  Wal- 
ter, special  assistant  United  States  attorney,  for  plaintiff. 

SiMMS,   Enslow,  and  Fitzpatrick  for  defendant. 

Keller,  District  Ju<l<jc    (ehari,'ing  jury)  : 

Gentlemen  of  the  jury,  this  is  a  civil  action  brought  by 
the  Government  of  the  United  States  against  the  Chesapeake 
and  Ohio    Railway  ("ompaiiy,   under  tlie  provisions  of  what 


APPENDIX    G. 


769 


are  known  as  the  "safety  appliance  acts,"  to  recover  pen- 
alties for  the  alleged  violation  of  those  acts,  the  declaration 
or  petition  containing  17  counts.  The  first  two  of  which, 
however,  allege  in  different  terms  the  same  violation,  and 
the  5th  and  6th  of  which  allege  in  different  terms  the  same 
violation ;  therefore  before  this  case  was  submitted  to  you 
the  Government  withdrew  from  your  consideration  counts 
1  and  5  and  left  the  declaration  consisting  of  15  counts, 
which  are  numbered,  respectively,  from  2  to  4  and  6  to  17. 

There  are  15  separate  violations  of  the  law  charged  here. 
Now,  I  have  but  very  little  to  say  to  you,  but  I  want  to 
give  you  the  legal  principles  so  far  as  I  think  should  govern 
your  consideration  of  this  case. 

First,  I  will  say  that,  the  action  not  being  criminal,  the 
Government  is  simply  obliged  to  prove  the  facts  which  con- 
stitute a  violation  of  this  act  by  a  preponderance  of  the 
evidence,  and  not,  as  in  criminal  actions,  beyond  all  reason- 
able doubt. 

I  also  instruct  you  that  upon  the  question  of  the  safety 
appliances  to  wit,  couplers  upon  ears  moved  by  a  railway 
engaged  in  interstate  commerce,  that  the  statute  requires 
the  coupler  on  each  end  of  every  car  be  in  operative  con- 
dition, so  that  a  person  need  not  go  between  the  cars  to 
couple  or  uncouple  any  two  cars,  no  matter  on  which  side 
of  the  train  he  is. 

It  was  in  evidence  in  this  case  that  the  coupling  device 
on  the  end  of  the  car,  joined  to  another,  in  certain  instances 
were  out  of  order,  so  that  that  particular  coupler  could  not 
be  operated,  and  although  it  may  have  been  true  that  the 
coupling  device  on  the  other  car  attached  to  that  could  have 
been  operated,  it  would  be  from  the  other  side  only  of  the 
train;  and  such  a  condition  existing,  was  a  violation  of  the 
terms  of  the  act,  for  which  if  the  ear  was  being  moved  in  a 
train  carrying  interstate  commerce  the  railway  company 
would  be  liable. 

I  also  instruct  you  that  the  loading  of  the  car  is  immaterial. 


770  FEDERAL  SAFETY  APPLIANCE  ACT. 

It  is  immaterial  whether  it  be  empty  or  loaded,  if  it  is  in- 
volved in  the  movement  of  a  train  containing  interstate 
traffic,  and  the  Government  in  the  preparation  of  its  de- 
claration in  one  or  more  counts  in  which  that  question  was 
involved  was  careful  to  allege  in  such  counts  that  in  the 
train  of  which  this  car  out  of  order  was  a  part  there  was 
at  least  one  car  loaded  with  traffic  consigned  to  points  with- 
out the  State  of  West  Virginia. 

I  have  been  asked  to  give  you  certain  instructions  on  be- 
half of  the  defendant  in  the  case,  one  of  them  being  the 
instruction  that  I  have  already  embodied  in  my  charge  to 
you,  to  the  effect  that  it  is  necessary  that  the  Government 
prove  its  case  by  a  preponderance  of  the  evidence. 

I  was  also  asked  to  instruct  you  regarding  the  violations 
charged  in  the  2nd  count  and  in  the  6th  count,  that  in  fixing 
the  number  of  ears  in  a  train  the  engine  and  tender  are  to 
be  counted  as  two  separate  and  distinct  ears.  I  think  that 
is  correct.  The  only  effect  of  that  would  be  in  determining 
w^hether  a  sufficient  proportion  of  cars  were  equipped  with 
air.  under  the  law  as  it  was  introduced  in  evidence  to  you. 
You  will  recall  that  in  the  act  it  was  provided  that  the  In- 
terstate Commerce  Commission  might  from  time  to  time 
determine  what  proportion  of  a  train  must  be  equipped 
with  air  brakes  under  the  control  of  the  engineer,  the  act 
at  the  time  of  its  passage  fixing  50  per  cent,  as  the  minimum 
proportion  of  cars  to  be  so  equipped;  and  later  under  this 
power  of  determination  the  Interstate  Commerce  Commis- 
sion, by  resolution,  raised  that  minimum  to  75  per  cent. 
It  is  alleged  in  count  2  and  in  count  6  that  in  the  2  .trains 
referred  to  in  those  counts  this  minimum  of'  cars  operated 
by  the  engineer  by  air  power  was  not  reached.  In  other 
words,  that  in  one  train  but  71  per  cent,  in  place  of  75  per 
cent,  were  so  equipped,  and  the  other  one,  I  believe,  less. 

Now,  I  think  that  is  a  correct  interpretation  of  the  law, 
that  in  determining  the  proportion  of  cars  controlled  by 
air  you  should  count  the  engine  and  the  tender  as  2   of 


APPENDIX    G.  771 

the  cars,  they  being,  unless  shown  to  be  otherwise,  equipped 
with  air,  because  the  engineer  controls  the  air  from  the 
engine. 

However,  according  to  my  understanding  of  the  testimony 
in  this  case,  that  would  not  affect  the  defendant  upon  these 
charges,  because  according  to  my  recollection  of  the  testi- 
mony, and  you  will  no  doubt  recall  it,  the  train  referred 
to  in  count  2  is  alleged  to  have  been  composed  of  45  cars, 
exclusive  of  the  engine  and  tender,  of  which  13  were  not 
equipped  with  air  so  as  to  be  under  the  control  of  the  en- 
gineer. Now,  adding  to  the  45  cars  the  2 — respectively, 
engine  and  tender — you  have  47,  and  75  per  cent,  of  47 
would  require  that  at  least  35  cars,  including  the  engine  and 
tender,  be  so  equipped  as  to  be  under  the  control  of  the 
engineer  for  air  braking,  which  would  leave  12  as  the  maxi- 
mum number  that  could  be  without  such  control.  The  proof 
in  the  case,  as  I  recall  it,  was  that  there  were  13  cars  with- 
out such  control,  and  if  you  find  that  to  be  the  fact  the 
statute  was  violated.  As  to  the  other  train  referred  to  in 
count  6,  my  recollection  is  that  the  percentage  of  cars 
equipped  with  air  Avas  smaller  than  in  the  one  I  have 
referred  to. 

I  have  been  asked  to  give  you  an  instruction  on  behalf 
of  the  Government,  and  I  do  so  accordingly: 


The  court  instructs  the  jury  that  if  they  believe  from  the  evidence 
that  the  defendant  company  liauled  the  trains  and  cars  as  alleged  in  the 
declaration  in  the  condition  alleged  in  said  declaration,  then  they  shall 
find  for  the  plaintiff  on  the  counts,  except  1  and  5,  which  have  been 
withdravPTi. 


In  other  words,  the  Government's  evidence  in  this  case, 
if  believed  by  the  jury,  makes  a  case  under  the  statute,  and 
therefore,  if  you  believe  the  evidence  of  the  Government,  it 
would  be  your  duty  to  find  on  each  count  except  the  first 
and  fifth. 

Verdict  for  Government, 


72  FEDERAL  SAFETY  APPLIANCE  ACT. 


UNITED  STATES  v.   SOUTHERN  PACIFIC  COMPANY. 

(In  the  United  States  District  Court  for  the  Northern  District  of 
California.) 

[167  Fed.  699.] 
Decided  December  f/,  1908. 
(Syllabus  approved  by  the  court.) 

1.  If  a  carrier  hauls  over  its  line  any  cars  which  can  not  be  coupled 

automatically  by  impact,  either  by  reason  of  being  improperly 
equipped  or  the  equipment  being  out  of  order  or  disconnected,  or 
otherwise  inoperative,  the  act  is  in  violation  of  the  safety-appli- 
ance law. 

2.  The   safety-appliance  statute  applies   to  the  coupler  on  each  end  of 

every  car  subject  to  the  law,  and  it  is  wholly  immaterial  in  what 
condition  was  the  coupler  on  the  adjacent  car,  or  on  any  other 
car  or  cars,  to  which  each  car  sued  upon  was  or  was  to  be  coupled. 

3.  Carriers  are   required  immediately   to  repair   defects   in   cars   caused 

during  the  time  they  are  being  hauled,  if  they  can  do  so  with 
the  means  and  appliances  at  hand  at  the  time  and  place,  or  when 
such  condition  should  have  been  discovered  by  the  exercise  of 
reasonable  care.  If  requisite  means  are  not  at  hand,  carriers  have 
the  right,  without  incurring  the  penalty  of  the  law,  to  haul  the 
defective  car  to  the  nearest  repair  point  on  their  line.  But  if 
they  haul  such  car  from  a  repair  point,  they  are  liable  for  the 
statutory  penalty. 

4.  It  is  the  duty  of  the  carrier  subject  to  the  safetj^-appliance  acts  to 

establish  reasonable  repair  points  along  its  line  for  the  making 
of  repairs  of  the  kind  necessary  to  comply  with  the  law;  at  such 
repair  points  there  should  be  the  material  and  facilities  to  make  all 
such  repairs. 

5.  The   railway   company   is   under    no   obligation   to   receive   from   any 

otlier  companj'  cars  defective  as  to  safety  appliances  and  when 
it  does  receive  cars  from  another  company  at  any  point  it  must 
know  at  its  peril  that  each  car  so  received  is  equipped  with  the 
safety  appliances  required  by  law,  and  that  such  appliances  are 
in  good  order  and  condition. 

6.  It  is  the  use  of  a  car  in  a  defective  condition  that  the  law  seeks  to 

prevent,  and  not  tlio  length  of  the  haul. 

7.  If    an    employee    of    a    railway    company    deliberately    puts    coupling 

devices  on  a  car  being  iised  in  interstate  traific  in  a  condition  which 
the  law  undertakes  to  prevent,  then  the  company  is  liabble  to 
respond   under   the   penalty   for   the  unlawful  act  of  the  employee. 


APPENDIX    G.  773 

Alfred  P.  Black,  assistant  United  States  attorney,  and 
Monroe  C.  List,  special  assistant  United  States  attorney 
for  the  United  States. 

Charles  P.  IIeggerty  for  the  defendant. 

INSTRUCTIONS   TO    JURY. 

DeHaven,  Distinct  Judge    (charging  jury)  : 

You  are  required  to  return  a  verdict  in  each  of  these 
cases.  The  first  one  is  13757,  and  contains  ten  causes  of 
action;  the  second  one  is  numbered  13760,  and  contains  two 
causes  of  action. 

The  first  two  causes  of  action  stated  in  No.  13757  charge 
a  violation  of  section  1  of  what  is  known  as  the  safety  ap- 
pliance act.  In  reference  to  those  two  counts,  I  now  in- 
struct you  it  will  be  your  duty  to  return  a  verdict  for  the 
Government.  The  remainder  of  the  counts  in  No.  13757 
charge  a  violation  of  section  2  of  the  safety  appliance  act. 
And  that  you  may  understand  precisely  the  questions  of  fact 
upon  which  you  are  called  to  pass,  I  will  read  this  section 
of  the  law  to  you : 

"That  from  and  after  the  first  day  of  January,  eighteen 
hun»dred  and  ninety-eight  it  shall  be  unlawful  for  any  such 
common  carrier" — that  is,  a  common  carrier  engaged  in 
interstate  traffic — "to  haul  or  permit  to  be  hauled  or  used 
on  its  line  any  car  used  in  moving  interstate  traffic  not 
equipped  Avith  couplers  coupling  automatically  by  impact, 
and  which  can  be  uncoupled  without  the  necessity  of  men 
going  between  the  ends  of  the  cars." 

This  section  of  the  law  applies  to  the  coupler  on  each  end 
of  every  car  subject  to  the  law,  and  it  is  wholly  immaterial 
in  what  condition  w^as  the  coupler  on  any  adjacent  car  or 
on  any  car  to  which  each  car  sued  upon  was  or  was  to  be 
coupled.  The  equipment  on  each  end  of  every  car  must 
be  in  such  condition  that  whenever  called  upon  for  use  it 
can  be  operated  without  the  necessity  of  men  going  between 
the  ends  of  the  cars. 


774 


FEDERAL  SAFETY  APPLIANCE  ACT. 


The  law  also  means  that  each  car  must  be  equipped  with 
an  uncoupling  lever  on  each  end  thereof,  by  means  of  which 
such  car  can  be  at  all  times  uncoupled  from  another  car  by 
a  man  standing  at  one  end  on  the  side  of  the  car,  and 
without  the  reasonable  necessity  of  going  between  such  car 
or  any  other  car,  or  without  going  around  the  end  of  the 
train  in  which  said  car  might  be  hauled,  or  without  crawl- 
ing under  or  over  said  cars,  in  order  to  reach  the  uncoupling 
lever  of  the  adjacent  car. 

While  the  safety-appliance  law  does  not  ask  a  railway 
company  to  do  the  impossible,  it  does,  nevertheless,  place 
upon  such  company  the  responsibility  of  properly  equip- 
ping its  cars  in  the  first  instance,  and  the  maintaining  of 
such  equipment  in  good  operative  condition  at  all  times 
thereafter.  Of  course,  if,  while  a  car  is  being  hauled  be- 
tween repair  stations,  some  defect  occurs  to  its  safety  ap- 
pliances, such  railway  company  must  use  the  utmost  care 
to  discover  and  repair  such  defects,  if  the  nature  of  the  re- 
pairs will  permit  of  their  being  made  at  that  time  and  place. 
Should  such  defect  be  of  a  heavy  nature  only  to  be  made  at 
repair  stations,  then  the  company  would  have  the  right, 
without  incurring  the  penalty  of  the  law,  to  haul  such  car 
to  the  nearest  place  where  such  repairs  can  be  made.  In 
doing  this,  the  company  can  not  choose  its  place  of  making 
repairs,  l)ut  must  avail  itself,  for  that  purpose,  of  the 
nearest  point  where,  by  the  exercise  of  diligence  and  fore- 
sight, it  may  prepare  to  make  such  repairs.  And  it  is  the 
duty  of  every  railway  company  subject  to  this  law  to  es- 
tablish reasonable  repair  points  along  its  line  of  railroad 
for  the  making  of  all  repairs  necessary  to  comply  with  the 
law;  that  is,  it  is  its  duty  to  establish  repair  points  at  all 
places  along  the  line  of  road  where  it  is  reasonably  necessary 
that  they  should  be  establish(Ml  in  order  faithfully  to  comply 
with  the  law.  Inasmuch  as  inability  alone  will  not  excuse 
a  company  from  a  literal  compliance  with  the  law,  it  is  the 
duty  of  such  company  to  have  the  material  and  facilities 
on  hand  at  ("Vcry   repair  jioint  to  make  repairs  of  the  kind 


APPENDIX    G. 


775 


necessary  to  comply  with  the  provisions  of  the  safety-appli- 
ance act.  And  if  a  defect  exists  at  a  repair  point,  or  at 
any  place  where  such  defect  could  have  been  repaired,  and 
the  company  moves  the  car  while  in  the  defective  condition, 
it  does  so  at  its  peril,  and  it  becomes  then  subject  to  the 
penalty  of  the  law.  The  law  is  not  satisfied  by  the  exercise 
of  reasonable  care  to  this  end;  but  the  company  must  at  its 
peril  discover  and  repair  all  defects  before  removing  a  ear 
from  a  repair  point. 

A  railway  company  is  under  no  obligation  to  receive  from 
any  other  company  cars  defective  as  to  safety  appliances, 
and  when  it  does  receive  cars  from  another  company  at  any 
point  it  must  know  at  its  peril  that  each  car  so  received  is 
equipped  with  the  safety  appliances  required  by  law,  and 
that  such  appliances  are  in  good  order  and  condition. 

The  penalty  under  the  safety-appliance  act  applies  to  every 
defective  car  hauled  contrary  to  its  provisions,  whether  or 
not  each  car  was  hauled  separately  or  in  a  train  together; 
and  it  matters  not  how  far  each  car  was  hauled ;  it  is  the 
use  of  the  car  in  a  defective  condition  that  the  law  seeks 
to  prevent  and  not  the  length  of  the  haul. 

Now,  as  to  the  different  counts : 

In  the  first  and  second  counts  of  13757  you  are  instructed 
to  find  for  the  plaintiff. 

The  third  count  charges  the  hauling  of  C,  B.  &  Q.  car  No. 
61488  when  the  coupling  and  uncoupling  apparatus  was 
missing  from  the  B  end  and  when  said  car  was  chained  to 
another  ear.  If  you  believe  that  the  defendant  so  hauled 
this  car  from  Truckee  in  this  condition,  and  that  Truckee 
was  a  repair  point  along  the  line  of  the  defendant  company, 
your  verdict  should  be  for  the  Government. 

The  fourth  count  charges  the  hauling  of  S.  P.  car  No, 
48602,  when  the  knuckle  was  missing  from  the  A  end  and 
when  the  car  was  chained  to  another  ear.  You  are  instructed 
that  the  law  lays  an  unqualified  duty  upon  a  railroad  com- 
pany to  keep  its  coupling  devices  in  a  certain  prescribed  con- 
dition, and  if  an  employee  of  such  company  deliberately  puts 


776  FEDERAL  SAFETY  APPLIANCE  ACT. 

sueh  devices  in  another  condition,  which  condition  the  law 
undertakes  to  prevent,  then  the  company  is  liable  to  respond 
under  the  penalty  for  the  unlawful  act  of  the  employee,  and 
if  you  believe  from  the  evidence  that  the  knuckle  M'as  removed 
from  this  car  for  the  purpose  of  chaining  it  to  another  car, 
and  that  the  car  was  so  hauled  in  interstate  traffic  in  that 
condition,  and  in  that  condition  it  would  be  necessary  for  a 
man  to  pass  between  the  end  of  that  car  and  an  adjacent  car 
in  order  to  couple  and  uncouple  them,  your  verdict  should 
be  for  the  Government. 

The  fifth  count  charges  the  hauling  of  B.  &  0.  car  Xo. 
57286,  when  the  keeper  or  inner  casting  was  broken  on  one 
end  and  the  uncoupling  lever  hanging  down  on  the  coupler. 
If  you  believe  that  this  uncoupling  lever  Avas  in  such  con- 
dition that  any  reasonable  effort  would  not  operate  the  same, 
and  that  in  order  to  uncouple  this  car  from  another  car  it 
would  have  been  reasonably  necessary  for  a  man  to  go  between 
the  cars,  and  that  in  that  condition  the  car  was  hauled  over 
the  line  of  defendant's  road  in  interstate  traffic,  then  your 
verdict  should  be  for  the  Government  on  that  count. 

The  sixth  count  charges  the  hauling  of  C,  M.  &  St.  P.  car 
No.  58960,  when  the  bottom  clevis  pin  was  missing  on  the 
A  end.  If  you  believe  that  the  car  was  in  that  condition, 
and  that  the  absence  of  this  pin  rendered  the  uncoupling 
lever  inoperative,  and  that  in  order  to  uncouple  this  car 
from  another  car  it  was  reasonably  necessary  for  a  man  to 
go  between  the  ends  of  the  cars,  and  that  in  that  condition 
the  car  was  hauled  over  the  line  of  defendant's  road  in  inter- 
state traffic,  then  your  verdict  should  be  for  the  Government. 

The  seventh  count  refers  to  a  "kinked"  chain.  If  this  car 
left  Truekee  while  the  chain  was  so  "kinked,"  and  while  in 
this  condition  the  coupler  was  inoperative,  requiring  the  rea- 
sonable necessity  of  a  man  to  go  between  the  cars  to  couple 
or  uncouple  them,  your  verdict  should  be  for  the  Government. 

The  eighth  and  ninth  counts  are  similar  to  the  fifth  and 
seventh  counts,  respectively,  and  what  I  have  said  in  regard 
to  those,  you  can  apply  to  these  counts. 

The  tenth  and  the  last  count  in  No.  13757  charges  the  use 


APPENDIX    G.  T7V 

of  a  locomotive  engine  when  the  coupk^r  was  missing  from 
the  A  or  front  end.  It  is  not  necessary  that  this  end  of  the 
locomotive  was  used  or  was  coupled  to  any  car,  that  is,  front 
end  or  A  end ;  it  is  the  use  of  the  locomotive  in  a  defective 
condition  that  the  law  seeks  to  prevent,  and  if  you  believe 
that  this  locomotive  was  used  by  the  defendant  upon  its 
line  of  railroad  in  connection  with  other  cars  engaged  in 
hauling  interstate  traffic,  and  not  used  for  the  purpose 
of  taking  it  to  the  nearest  point  where  it  could  be 
repaired,  your  verdict  should  be  for  the  Government.  Of 
course,  if  you  find  that  it  was  only  taken  to  Sparks,  and 
find  that  that  was  the  nearest  place  where  it  could  be  re- 
paired, and  that  it  was  only  taken  there  for  that  purpose, 
then  your  verdict  should  be  for  the  defendant  on  that  count. 

The  first  and  second  counts,  and  the  only  counts,  in  case 
No.  13760,  charge  the  hauling  of  two  cars  chained  together. 
If  you  believe  that  these  cars  were  delivered  to  the  Southern 
Pacific  Company  in  such  a  condition  by  another  company, 
that  is,  if  you  believe  they  were  delivered  to  them  in  such 
a  condition  as  has  been  testified  to  by  the  witnesses  for  the 
Government,  and  you  should  find  that  the  defendant  in 
hauling  interstate  traffic  used  them  on  its  train  engaged  in 
interstate  traffic,  your  verdict  should  be  for  the  Government. 
One  carrier  can  not  receive  a  defective  car  from  another 
carrier  and  exccuse  itself;  it  must  discover  such  defect  at 
its  peril  before  it  receives  and  hauls  any  such  car  in  inter- 
state traffic. 

I  need  not  say  to  you,  but  I  will  say  to  you,  that  you  are 
the  exclusive  judges  of  the  credibility  of  the  different  wit- 
nesses who  have  testified  in  your  hearing;  that  is,  you  must 
determine  for  yourselves  which  witness  or  witnesses  you 
will  believe,  and  then  after  you  have  fixed  that  in  your  mind 
you  are  also  the  exclusive  judges  of  what  ultimate  facts  are 
showTi  by  such  testimony. 

In  considering  this  testimony,  positive  testimony  is  to  be 
preferred  to  negative  testimony,  other  things  being  equal; 


7/0  FEDERAL    S^VFETY    APPLIANCE   ACT. 

that  is  to  say,  when  a  credible  witness  testifies  as  to  the 
existence  of  a  fact  at  a  particular  time  and  place  and  an- 
other equally  credible  witness  testifies  to  having  failed  to 
observe  such  fact,  the  positive  declaration  is  ordinarily  to 
be  preferred  to  the  negative  in  the  absence  of  other  testi- 
mony or  evidence  corroborating  the  one  or  the  other.  Never- 
theless, that  is  a  question  for  you  solely  in  passing  on  the 
weight  to  be  given  to  this  positive  and  negative  testimony. 
If,  in  your  judgment,  the  testimony  of  the  witness  who  says 
that  he  did  not  see  a  thing  is  entitled  to  weight;  that  the 
circumstances  surrounding  him  at  that  time,  at  the  time 
he  made  the  examination,  were  such  that  if  the  fact  had 
existed  he  would  have  seen  it.  then  as  a  matter  of  course 
you  would  be  at  liberty  to  find  that  the  fact  did  not  exist ; 
that  is  simply  a  rule  of  common  sense  in  weighing  testimony. 

In  regard  to  the  burden  of  proof,  the  burden  of  proof  is 
on  the  Government  to  establish  by  preponderance  of  evi- 
dence the  facts  charged  in  the  different  counts  of  the  peti- 
tion. And  by  a  preponderance  of  evidence  is  not  meant  the 
greater  number  of  witnesses,  but  it  means  that  evidence 
which  to  your  mind  is  the  most  satisfactory  and  is  entitled 
to  the  greatest  weight. 

A  Jltior.  I  should  like  to  ask  a  question :  In  taking  that 
engine  from  Truckee  to  Sparks,  is  it  a  breaking  of  the  law 
as  interpreted  by  hitching  it  to  a  train,  or  does  it  have  to 
go  down  alone? 

The  Court.  If  Truckee  was  a  repair  point  and  a  place 
where  the  engine  ought  to  have  been  repaired,  and  it  was 
attached  to  a  train  engaged  in  interstate  traffic  and  taken 
to  Sparks,  that  would  be  a  violation  of  the  law.  But  if 
Truckee  was  not  a  repair  point,  and  the  engine  could  not  have 
been  repaired  at  Truckee,  and  was  simply  taken  do\\Ti  to 
Sparks  for  the  purpose  of  repair,  I  should  say  that  that 
would  not  be  a  violation  of  the  statute. 

Another  Juror.  I  should  like  to  ask  a  question  in  regard 
to  the  two  cars  at  Richmond:  Would  those  two  cars  be  con- 
sidered as  engaged  in  interstate  traffic? 


APPENDIX    G.  779 

The  Court.  That  is  a  question  for  the  jurj^  to  determine 
from  the  evidence  in  this  case.  If  they  were  attached  to 
other  cars  engaged  in  interstate  traffic,  then  they  wou'd  be 
engaged  in  interstate  traffic. 

Another  Juror.  If  the  engine  referred  to  needed  re- 
pairs, and  could  only  be  repaired  at  Sparks,  but  was  used 
between  Truckee  and  Sparks  in  the  hauling  of  a  train  as 
far  as  that  point,  should  we  find  for  the  Government? 

The  Court.  If  the  engine  could  not  be  repaired  at 
Truckee,  and  the  company,  under  the  law  I  have  laid  down 
before  you,  was  not  required  to  be  able  to  repair  it  there, 
and  it  was  moved  to  Sparks  for  the  purpose  of  being  re- 
paired, I  should  say  that  the  mere  fact  that  it  was  attached 
to  an  interstate  traffic  train  would  not  render  the  company 
liable  if  the  main  purpose  in  removing  was  to  repair  it. 

(The  jury  returned  the  following  verdict:  In  case  13760, 
for  the  United  States;  in  case  13757,  for  the  United  States 
on  the  1st.  2d,  3d,  4th,  5th,  6th,  7th,  8th,  and  9th  causes 
of  action  set  forth  in  the  complaint;  and  for  the  defendant 
on  count  10.) 


UNITED    STATES   v.   BOSTON   &   MAINE    RAILROAD 

COMPANY. 

(In  the  District  Court  of  the  United  States  for  the  District  of 

Massachusetts. ) 

[168    Fed.    148.] 
Decided  January  5,  1909. 

(Syllabus  by  the  court.) 

1.  Section  4  of  the  safety  appliance  act  requires  secure  grab-irons  or 
handliolds  at  those  points  in  the  end  of  each  car  where  they  are 
reasonably  necessary  in  order  to  afford  to  men  coupling  and  un- 
coupling cars  greater  security  than  would  be  afforded  them  in  the 
absence  of  any  grab-iron  or  handhold  at  that  ix)int  or  of  any  appli- 
ance affording  equal  security  with  a  grab-iron  or  handhold. 


780  FEDERAL   SAFETY   APPLIANCE   ACT. 

2.  If  at  any  place  in  the  end  of  a  car  there  is  not  a  grab-iron  or  hand- 

hold, properly  speaking,  but  some  other  appliance,  such  as  a  ladder 
or  brake  lever,  which  afforded  equal  security  with  a  grab-iron  or  a 
handhold  at  tliat  point,  the  Federal  safety  appliance  law  so  far  as 
grab-iron  or  handhold  at  that  point  is  concerned  has  not  been  vio- 
lated. Having  something  there  which  performs  all.  the  functions  of 
a  grab-iron  or  handhold  is  just  the  same  thing  as  having  what  is 
properly  called  a  grab-iron  or  handhold  at  that  point. 

3.  Unless  the  Government   satisfies   a  jury  by  a   preponderance-  of  the 

evidence  that  there  was  no  grab-iron  or  liandhold  on  the  car  where 
there  should  have  been  one,  the  jury  should  find  for  the  railroad 
company. 

4.  A  man  engaged  in  connecting  or  disconnecting  the  air  hose  between 

the  cars  is  engaged  in  coupling  or  uncoupling  cars  within  the  mean- 
ing of  the  safety  appliance  act,  if  it  is  necessary  for  him  to  connect 
or  disconnect  that  hose  in  order  to  connect  or  disconnect  the  cars. 

5.  Where  a  car  is  not  properly  provided  with  grab-iron  on  a  given  day, 

and  the  train  stops  for  a  certain  time  and  then  goes  on  again,  there 
are  not  two  violations  of  the  law,  but  only  one,  because  the  car  is 
all  the  time  being  moved  in  the  same  train.  It  makes  no  difference 
that  it  is  being  so  moved  on  two  different  days. 

6.  A  "train"  is  one  aggregation  of  cars  drawn  by  the  same  engine,  but 

if  the  engine  is  changed  then  there  is  a  different  train. 

William  H.  Garland,  assistant  United  States  attorney, 
and  Phillip  J.  Doherty,  special  assistant  United  States 
attorney j  for  the  United  States. 

Charles  S.  Pierce,  for  defendant. 


instructions  to  jury. 

Dodge,  District  Judge  (charging  jury)  : 

The  statute  which  we  are  considering  in  this  case  is  a 
statute  passed  by  Congress  under  the  power  which  is  in- 
trusted to  Congress  by  the  Constitution  to  regulate  com- 
merce between  the  several  States.  Congress  makes  this  law 
in  regulation  of  interstate  commerce;  it  has  the  power  to 
make  such  regulations.  If  we  were  dealing  here  with  a  rail- 
road or    a    train  which  was  not  engaged    in  interstate  com- 


APPEMDIX    G.  781 

merce  at  all,  this  statute  would  not  apply.  It  does  not 
seem  to  be  disputed  in  this  case  that  the  defendant  railroad, 
and  the  car  with  which  you  are  concerned,  were  both  en- 
gaged in  interstate  commerce,  and  therefore  were  subject  to 
the  provisions  of  the  statute.  The  defendant  railroad  is 
charged  in  the  declaration  which  the  Government  has  filed 
against  it  with  five  different  violations  of  the  statute.  It 
is  for  the  jury  to  say  as  to  each  of  those  violations  charged 
whether  the  defendant  has  committed  it  or  not. 

As  to  three  of  the  violations  charged,  while  the  jury  is  still 
to  say  whether  this  defendant  has  committed  them  or  not, 
they  are  saved  the  trouble  of  deciding  any  disputed  questions 
of  fact,  as  this  case  goes  to  them.  As  to  the  violation  of 
the  statute  charged  in  the  second  count  of  the  declaration, 
the  defendant  admits  that  it  has  been  committed,  and  that 
the  jur}^  may  find  for  the  plaintiff  upon  the  count.  The 
same  as  to  the  third  count  of  the  declaration,  the  jury  are 
to  find  for  the  plaintiff  also  on  that  count  by  consent  of  the 
defendant. 

As  to  the  fourth  count  of  the  declaration,  the  court  has 
ruled  that  the  evidence  is  not  sufficient  to  warrant  a  verdict 
for  the  plaintiff,  and  the  jury  therefore  will  find  for  the 
defendant  as  to  that  count  by  direction  of  the  court.  You 
are  aware,  gentlemen,  that  in  all  cases  tried  before  you, 
questions  of  law  are  for  the  court  and  questions  of  fact  are 
for  the  jury.  The  question  presented  here  on  the  fourth 
count  of  the  declaration  is  an  example  of  a  question  of  law. 
The  court  takes  upon  itself  the  responsibility  of  directing 
the  jury  to  find  for  the  defendant  on  that  count.  In  this 
instance,  and  in  all  other  instances  where  either  party 
thinks  that  the  court  has  decided  the  question  wrongly,  they 
have  a  remedy  by  appeal.  They  may  go  to  the  Circuit 
Court  of  Appeals  within  this  circuit  and  have  that  court 
determine  whether  this  court  has  rightly  decided  the  ques- 
tion or  not.  But  it  is  for  you  to  follow  the  direction  of  this 
court  for  the  time  being,  in  order  that  the  question  may  be 


782  FEDERAL  SAFETY  APPLIANCE  ACT. 

properly  presented  on  appeal.  Therefore  although  your 
verdict  as  to  the  fourth  count  is  by  direction  of  the  court 
a  finding  for  the  defendant,  it  is  a  verdict  of  which  the 
court  takes  the  entire  responsibility. 

Now,  gentlemen,  I  come  to  the  two  counts  which  are  sub- 
mitted to  you  for  your  consideration.  They  both  relate  to 
the  same  car — a  car  No.  24089,  a  car  marked  "New  York, 
New  Haven  &  Hartford  Railroad."  a  box  car — and  the 
Government  charges  as  to  that  car.  while  being  hauled  in  a 
train  from  Springfield  to  the  Brightwood  yard,  that  on 
September  19,  1907.  it  was  not  provided  with  a  grab-iron 
or  handhold  such  as  the  law  requires.  And  in  the  fifth  count, 
as  to  the  same  car.  the  Government  charges  that  on  September 
20,  1907,  while  being  moved  from  the  Brightwood  yard 
northerly,  it  was  not  provided  with  a  grab-iron  or  handhold 
such  as  the  law  requires.  It  is  not  disputed,  as  I  have 
stated,  that  this  car  Avas  being  used  in  interstate  commerce 
at  these  times.  Now,  the  question  for  you  to  decide  is:  Did 
that  car.  or  did  it  not,  have  on  it  grab-irons  or  handholds 
such  as  the  statute  requires  that  it  should  have  while  it  was 
being  moved  by  the  railroad  in  interstate  commerce? 

I  will  read  to  you  once  more  the  language  of  the  section 
of  the  statute  with  which  we  are  concerned: 

"From  and  after  the  first  day  of  July,  eighteen  hundred 
and  ninety-five,  until  otherwise  ordered  by  the  Interstate 
Commerce  Commission,  it  shall  be  unlawful  for  any  railroad 
company  to  use  any  car  in  interstate  commerce  that  is  not 
provided  with  secure  grab-irons  or  handholds  in  the  ends 
and  sides  of  each  car  for  greater  security  to  men  in  coupling 
and  uncoupling  cars." 

There  is  no  question  made  either  on  September  19  or 
September  20  about  the  sides  of  this  car.  We  are  concerned 
only  with  the  ends.  Now.  taking  that  section  as  it  stands, 
and  giving  duo  weight  to  the  language  in  which  the  require- 
ments are  expressed,  we  have  to  consider  just  what  they 
mean  as  applied  to  the  question  arising  in  this  case,  and  I 


APPENDIX    G.  783 

shall  instruct  you,  gentlemen,  that  section  4  requires  secure 
grab-irons  or  handholds  at  those  points  in  the  end  of  each 
car  where  they  are  reasonablj^  necessary  in  order  to  afford 
to  men  coupling  or  uncoupling  cars  greater  security  than 
would  be  afforded  them  in  the  absence  of  any  grab-iron  or 
handhold  at  that  point  or  of  any  appliance  affording  equal 
security  with  a  grab-iron  or  handhold.  If  at  any  place  in 
the  end  of  this  car  there  was  not  a  grab-iron  or  handhold, 
properly  speaking,  but  some  other  appliance,  such  as  a  ladder 
or  brake  lever,  or  whatever  else  you  please,  which  afforded 
equal  security  with  a  grab-iron  or  a  handhold  at  that  point, 
then  I  shall  instruct  you  that  the  law  has  not  been  violated 
so  far  as  a  grab-iron  or  handhold  at  that  point  is  concerned. 
Having  something  there  which  performs  all  the  functions 
of  a  grab-iron  or  a  handhold  is  just  the  same  thing  as  having 
what  is  properly  called  a  grab-iron  or  a  handhold  at  that 
point.  It  may  not  be  possible  to  say  that  a  coupling  lever 
or  a  ladder  is  a  grab-iron  or  a  handhold,  but  if  it  affords 
the  same  security  to  a  man  who  may  need  to  use  one  that 
a  grab-iron  or  a  handhold,  properly  speaking,  would  afford, 
then,  in  my  judgment,  the  statute  has  not  been  violated. 

The  question  of  fact,  therefore,  for  you  is:  Are  you  satis- 
fied by  a  preponderance  of  the  evidence  that  there  was  any- 
where in  the  end  of  this  car  a  grab-iron  or  a  handhold  w^ant- 
ing  where  it  should  have  been  according  to  the  test  which 
I  have  given  you;  that  is,  where  a  grab-iron  or  a  handhold 
would  be  reasonably  necessary  in  order  to  afford  to  men 
coupling  or  uncoupling  cars  greater  security  than  would  be 
afforded  them  in  the  absence  of  any  grab-iron  or  handhold 
at  that  point? 

Now,  that  question  you  are  to  determine  by  a  prepon- 
derance of  the  evidence  here.  You  have  listened  to  the  evi- 
dence of  the  two  inspectors  of  the  Interstate  Commerce 
Commission,  who  tell  you  that  they  examined  this  car  on 
the  two  days  referred  to,  and  they  described  to  you  pretty 
fully  what  they  found  on  the  end  of  the  car  in  question,  and 


784  FEDERAL  SAFETY  APPLIANCE  ACT. 

they  tell  you  that  at  a  certain  place  there  was  no  grab-iron 
or  handhold. 

Now,  on  the  other  hand,  you  have  the  evidence  introduced 
by  the  defendant  railroad,  which  may  induce  you  to  think 
that  the  presence  of  a  grab-iron  or  a  handhold  where  the  in- 
spectors have  said  that  one  was  absent  would  make  no  dif- 
ference, so  far  as  affording  greater  security  to  men  is  con- 
cerned. 

You  are  to  be  satisfied  by  the  Government  in  this  case 
by  a  preponderance  of  the  evidence  that  there  was  no  grab- 
iron  or  handhold  where  there  should  have  been  one.  If 
you  are  so  satisfied,  you  should  find  for  the  plaintiff,  for  the 
Government  in  this  case.  Unless  the  Government  has  so  satis- 
fied you  by  a  preponderance  of  the  evidence,  you  should  find 
for  the  defendant. 

Now,  3'Ou  are  to  remember  in  this  case  that  you  are  to 
decide  it  according  to  a  preponderance  of  the  evidence.  In 
all  the  other  cases  to  which  you  have  listened  here  and 
which,  as  I  recall  it,  have  been  criminal  cases,  I  have  in- 
structed you  that  the  Government,  in  order  to  convict,  must 
prove  its  ease  beyond  a  reasonable  doubt.  This  not  being  a 
criminal  case,  according  to  my  view,  the  same  rule  does 
not  prevail.  A  preponderance  of  the  evidence  in  this  case 
is  sufficient;  and  what  does  that  mean?  It  means  that  after 
balancing  and  considering  the  evidence  on  the  one  side  and  on 
the  other  you  are  not  left  in  doubt,  but  that  you  find 
that  the  evidence  for  the  Government  outweighs  the  evi- 
dence brought  here  to  meet  it.  If  your  minds  after  weighing 
and  considering  the  evidence  on  both  sides  are  left  in  doubt, 
if  they  are  left  equally  balanced  on  the  question,  there  is 
no  preponderance  of  the  evidence;  and  in  that  event,  as 
I  have  told  you,  your  verdict  should  be  for  the  defendant. 
It  is  necessary,  in  order  to  find  a  verdict  for  the  plaintiff, 
that  the  evidence  for  the  Government  should  outweigh  that 
for  the  defendant. 

1  have  stated  to  you  that  gral)-iroiis  or  handholds  are  re- 
(juircd   by  the   statute   to   be   at  such  points   in   the   end  of 


APPENDIX    G.  785 

this  car  where  they  are  reasonably  necessary  in  order  to 
afford  greater  security  to  men  in  coupling  or  uncoupling 
cars.  Something  has  been  said  here  about  men  connecting 
or  disconnecting  the  air  hose  with  v:hich  the  air  brakes  are 
operated,  and  the  question  has  been  raised,  is  a  man  between 
the  cars  simply  to  connect  or  disconnect  air  hose  a  man 
engaged  in  coupling  and  uncoupling  cars  within  the  mean- 
ing of  the  statute?  Now.  on  that  point  I  instruct  you  that 
a  man  engaged  in  connecting  or  disconnecting  the  air  hose 
between  the  cars  is  engaged  in  coupling  or  uncoupling  cars 
within  the  meaning  of  the  statute  if  it  is  necessary  for  him 
to  connect  or  disconnect  that  hose  in  order  to  connect  or 
disconnect  the  cars. 

The  Government  claims  here  that  it  has  proved  to  you  by  a 
preponderance  of  the  evidence  not  only  one  violation  of  the 
statute,  but  two.  Novs^,  on  that  point,  gentlemen,  you  will 
consider  whether  or  not  this  car,  in  the  first  place,  was  un- 
provided Avith  grab-irons  or  handholds,  as  it  should  have 
been,  and.  in  the  second  place,  whether  it  was  moved  by 
this  railroad  in  more  than  one  train.  Let  us  suppose  that 
you  have  found  that  that  car  was  on  a  given  day  not  properly 
provided  with  grab-irons  and  handholds  as  the  statute  re- 
quires. Let  us  suppose  that  that  car  was  at  the  time  being 
moved  in  a  train.  Let  us  suppose  that  that  train  stopped 
for  some  purpose,  no  matter  what,  for  a  while,  and,  after 
having  so  stopped  for  a  certain  time,  started  up  and  went 
on  again.  Now,  in  a  supposed  ease  like  that,  my  instruction 
to  you  would  be  that  there  were  not  two  violations  of  the 
law,  but  only  one,  because  the  car  was  all  the  time  being 
moved  in  the  same  train.  I  should  instruct  you.  gentlemen, 
that  so  long  as  the  car  is  being  all  the  time  moved  in  the 
same  train,  it  makes  no  difference  that  it  is  being  so  moved 
on  two  different  days;  that  so  long  as  the  ear  continues  be- 
ing moved  by  the  railroad  on  the  same  train  it  makes  no 
difference  that  September  19  has  run  out  and  September 
20  has  come  in:  that  that  does  not  make  two  distinct  viola- 
tions of  the  statute,  but  the  movement  of  the   car  being, 


786  FEDERAL  SAFETY  APPLIANCE  ACT, 

though  on  those  two  different  days,  all  the  time  in  one 
train,  there  has  only  been  one  violation  of  the  statute.  You 
will  consider  upon  the  evidence  to  which  you  have  listened 
whether  this  car  has  been  moved  in  more  than  one  train. 
If  you  so  find,  it  will  be  proper,  provided  you  have  been 
satisfied  by  a  preponderance  of  the  evidence  that  it  was 
being  so  moved  without  the  grab-irons  and  handholds  which 
the  law  requires,  to  find  for  the  plaintiff  both  on  the  first 
count  and  on  the  fifth  count.  If.  on  the  other  hand,  you 
are  not  satisfied  by  a  preponderance  of  the  evidence  that  the 
car  was  moved  in  two  trains,  but  was  only  so  moved  in  one, 
that  both  on  September  19  and  on  September  20  the  car 
was  continued  all  the  time  in  one  train,  you  should  then  find 
for  the  plaintiff  only  on  one  of  those  counts,  either  the  first 
or  the  fifth,  but  you  should  not  find  for  the  plaintiff  on 
both  of  them. 

Is  there  anything  else  which  counsel  desire  me  to  speak  to 
the  jury  about? 

[Counsel  confer  with  the  court  at  the  bench.] 

The  Court.  In  regard  to  what  makes  a  train,  Mr.  Foreman 
and  gentlemen,  bj''  "train"  I  understand  one  aggregation 
of  cars  drawn  by  the  same  engine,  and  if  the  engine  is 
changed.  I  understand  there  is  a  different  train. 

Verdict  for  Government,  four  counts. 


UNITED  STATES  v.  BALTIMORE  &  OHIO  RAILROAD 

CO:\IPAXY. 

( In  the  District  Court  of  the  United  States  for  the  Northern  District  of 
West   Virginia. ) 

Decided  January  J8,  1909. 

(Syllabus  by  the  court.) 

1,  The  federal  safety-appliance  act  makes  no  exception  and  places  no 
limitations  upon  tlie  duty  of  a  railroad  company  to  equip  its  cars 
with  the  prescribed  safety  appliances. 


APPENDIX    G. 


787 


2.  It  is  the  duty  of  a  common  carrier  subject  to  the  law  to  use  at  all 

times  reasonable  care  to  discover  and  repair  all  defects  to  its  equip- 
ment; but  if  a  defect  exists  at  a  repair  point,  or  at  any  place 
where  such  defect  could  be  repaired,  and  the  company  moves  such 
car  from  such  a  point,  it  does  so  at  its  peril  and  is  liable  for  the 
statutory  penalty;  the  exercise  of  reasonable  care  to  discover  and 
repair  defects  at  such  a  place  is  no  defense. 

3.  The  law  neither  defines  a  handhold  nor  the  exact  location  of  same, 

and  it  is  for  the  jury  to  determine  whether  a  car  is  equipped  with 
proper  handholds  or  with  such  suitable  substitutes  as  will  give  to 
the  employes  greater  security  in  the  coupling  and  uncoupling  of 
cars. 

4.  Actions   arising   under    the    safety-appliance   act   are   civil,    and   not 

criminal  actions,  and  the  Government  is  only  required  to  establish 
by  a  preponderance  of  evidence  the  facts  necessary  to  prove  its 
case;  and  by  a  preponderance  of  evidence  is  not  meant  the  greater 
number  of  witnesses,  but  it  means  that  evidence  which  is  the  most 
satisfactory  and  which  is  entitled  to  the  greatest  weight. 

Reese  Blizzard,  United  States  attorney,  and  Monroe  C. 
List,  special  assistant  United  States  attorney,  for  the  United 
States 

Van  Winkle  &  Ambler  for  the  defendant. 


INSTRUCTIONS  TO  JURY. 

Dayton,  District  Judge  (charging  jury)  : 

Exercising  its  constitutional  right  to  regulate  commerce 
between  the  states,  Congress  has  passed  a  law  which  pro- 
vides : 

That  from  and  after  the  1st  day  of  January,  1898,  it  shall  be  un- 
lawful for  any  common  carrier  engaged  in  interstate  commerce  by  rail- 
road to  use  on  its  line  any  locomotive  engine  in  moving  interstate  traffic 
not  equipped  with  a  power  driving  wheel  brake  and  appliances  for 
operating  the  train-brake  system,  or  to  run  any  train  in  such  traffic 
after  said  date  that  has  not  a  sufficient  number  of  cars  in  it  so  equipped 
with  power  or  train  brakes  that  the  engineer  on  the  locomotive  drawing 
such  train  can  control  its  speed  without  requiring  brakemen  to  use  the 
common  hand  brake  for  that  purpose. 


788  FEDERAL  SAFETY  APPLIANCE  ACT. 

That  on  and  after  the  1st  day  of  January,  1898,  it  shall  be  unlawful 
for  any  such  common  carrier  to  haul,  or  permit  to  be  liauled,  or  used 
on  its  line  any  car  used  in  moving  interstate  traffic  not  equipped  with 
couplers  coupling  automatically  by  impact,  and  which  can  be  uncoupled, 
without  the  necessity  of  men  going  between  the  ends  of  the  cars. 

That  from  and  after  the  1st  day  of  July,  1895,  until  otherwise 
ordered  by  the  Interstate  Commerce  Commissiouj  it  shall  be  unhiwful 
for  any  railroad  company  to  use  any  car  in  interstate  commerce  that 
is  not  provided  with  secure  grab-irons  or  handholds  in  the  ends  and 
sides  of  each  car  for  the  greater  security  to  men  in  coupling  and  un- 
coupling cars. 

That  any  such  common  carrier  using  any  locomotive  engine,  running 
any  train,  or  hauling,  or  permitting  to  be  hauled,  or  used  on  its  line 
any  car  in  violation  of  any  of  the  provisions  of  this  act  shall  be  liable 
to  a  penalty  of  one  hundred  dollars  for  each  and  every  such  violation, 
to  be  recovered  in  a  suit  or  suits  to  be  brought  by  the  United  States 
district  attorney  in  the  district  court  of  the  United  States  having 
jurisdiction  in  the  locality  where  such  violation  shall  have  been  com- 
mitted. 

This  action  which  you  have  in  charge  and  are  to  deter- 
mine is  based  upon  this  statute.  There  are  five  counts  in 
the  complaint  charging  five  distinct  violations  of  this  law. 
There  are  three  different  verdicts  that  can  be  rendered  by 
you,  one  finding  the  defendant  guilty  upon  each  and  every 
count  embraced  in  this  complaint ;  another  finding  the  de- 
fendant not  guilty  of  each  and  every  charge  embraced  in 
the  complaint;  and  the  third,  finding  the  defendant  guilty 
of  certain  ones  of  the  charges  made  and  not  guilty  of  cer- 
tain other  ones  of  them.  You  will  therefore  see  that  in 
considering  this  matter  it  is  your  duty  to  take  up  each 
one  of  these  counts  in  this  complaint,  each  charge  of  a  viola- 
tion, and  consider  it  independently  of  the  others,  and  ascer- 
tain whether  or  not  the  defendant  is  guilty  or  not  guilty 
of  that  specific  charge  in  that  specific  instance  and  count. 

The  court  wants  to  say  to  you  that  the  safety-appliance 
statute  makes  no  exception  and  places  no  limitation  upon  this 
duty  of  the  railroad  company  to  supply  these  safety  devices 
to  their  cars,  and  when  T  say  cars,  it  has  been  considered  and 
held,  and  rightly  so,  that  an  engine  and  tender  are  embraced 


APPENDIX    G.  789 

within  that  definition.  It  is  therefore  the  duty  of  the  rail- 
road company  to  use  all  reasonable  care  at  all  times  to  dis- 
cover and  remedy  these  defects  when  they  appear  in  any  of 
these  safety  appliances  attached  to  an  engine  or  a  .car ;  and 
if  a  defect  exists  at  a  repair  point,  or  at  any  place  where 
such  defect  could  have  been  remedied,  and  the  company 
moves  the  car  while  in  the  defective  condition,  it  does  so  at 
its  peril  and  it  becomes  then  subject  to  the  penalty  of  the 
law.  The  law  is  not  satisfied  by  the  exercise  of  reasonable 
care  to  this  end,  but  the  company  must,  at  its  peril,  dis- 
cover and  repair  all  defects  before  moving  a  car  from  a 
repair  point.  Now,  that  you  may  understand  that  more 
fully,  let  me  say  to  you  that  it  is  entirely  reasonable  that 
a  railroad  company  should  be  required  to  maintain  repair 
shops  or  repair  material  and  make  inspections  and  repairs 
at  places  within  reasonable  distances  of  each  other ;  that 
in  establishing  such  repair  points  the  company  has  the  right, 
in  the  ordinary  operation  of  their  trains  between  those  re- 
pair points,  when  a  train  is  in  operation  and  defects  arise, 
reasonably,  to  carry  the  car,  the  appliances  on  which  are 
broken  or  defective,  to  the  first  repair  point,  but  they  do 
not  have  the  right,  having  carried  it  to  that  point,  to  take 
it  beyond  that  point  without  discovering  and  without  mak- 
ing the  necessary  repairs  to  those  safety  appliances  attached 
to  that  car,  and  if  they  do  carry  it  beyond  that  point  they 
are  liable  to  the  penalty  provided  for  by  this  law. 

This  action  is  not  a  criminal  action,  but  a  civil  one,  and 
as  a  civil  action  the  burden  of  proof  is  upon  the  Govern- 
ment to  establish  by  a  preponderance  of  evidence  the  facts 
necessary  to  show  the  violation  of  the  law  on  the  part  of 
the  defendant,  and  by  a  preponderance  of  evidence  is  not 
meant  the  greater  number  of  witnesses,  but  it  means  that 
evidence  which  to  your  mind  is  the  most  satisfactory  and 
is  entitled  to  the  greatest  weight.  The  very  reason  why  we 
have  juries  to  determine  the  facts  in  eases  like  this  is  that 
they  may  judge  of  the  evidence  after  hearing  the  witnesses 


790  FEDERAL  SAFETY  APPLIANCE  ACT. 

and  that  they  may  take  all  of  the  facts  and  all  of  the  cir- 
cumstances and  weigh  them  and  determine  where  the  very 
truth  lies.  Under  the  ordinary  rules  of  evidence,  positive 
testimony  is  stronger  than  negative  testimony  where  that 
negative  testimony  is  not  so  strong  as  to  make  it  apparent 
that  the  witnesses  stating  the  positive  fact  are  mistaken 
or  untruthful.  Evidence  given  by  witnesses  of  the  very 
circumstances  and  surroundings  of  the  matter  may  fre- 
quently be  of  a  determining  character  and  kind.  It  is  your 
peculiar  province  to  weigh  all  the  facts  and  all  the  circum- 
stances and  all  the  testimony  and  from  them  as  a  whole 
determine,  as  I  have  said,  wherein  the  exact  truth  lies. 

Now,  I  am  asked  by  the  defendant  to  give  you  this  in- 
struction, which  I  do.  Before  the  jury  can  find  the  defend- 
ant guilty  in  this  case  the  Government  must  prove  by  a  clear 
preponderance  of  evidence  that  the  safety  appliances  on 
the  cars  mentioned  in  the  complaint  were  out  of  repair 
and  inoperative  in  the  particulars  mentioned  in  the  com- 
plaint, axid  unless  the  Government  does  establish  this  by 
clear  and  satisfactory  evidence,  the  jury  should  find  the 
defendant  not  giiilty  as  to  each  car  which  is  not  thus  proved 
to  have  been  defective. 

Gentlemen,  it  is  for  you  to  determine,  touching  the  hand 
hold  on  the  engine  in  this  case,  whether  or  not  the  appli- 
ance that  was  testified  to  by  the  witness  Johnson,  at  the 
end  or  corner  of  the  tender  and  the  release  bar,  was  a  fair  and 
proper  substitute  for  the  ordinary  grab-irons  referred  to  in  this 
statute.  If  they  were  suitable  for  the  purpose  of  enabling 
the  operators  of  the  train  to  couple  and  uncouple  cars  and 
were  a  fair  substitute  and  suitable  for  that  purpose,  then 
it  would  be  proper  for  you  to  find  the  defendant  not  guilty; 
if  they  were  not  suitable  and  proper  for  the  purpose  I  have 
indicated,  their  presence  could  not  be  regarded  as  a  compli- 
ance with  the  provisions  of  this  statute.  You  will  take  into 
consideration  the  hand  holds  on  the  side  of  the  car,  in  con- 
nection with  the  brace  at  the  end  and  the  release  rod  along 


APPENDIX    G.  791 

the  end,  and  if  you  believe  the  whole  to  be  a  fair  equipment 
and  suitable  and  proper  for  the  purpose  of  enabling  the 
operators  of  the  train  to  couple  and  uncouple  cars,  then  I 
sky  it  is  your  duty  to  find  the  defendant  not  guilty  on  that 
count;  but  if  they  are  not  suitable  for  that  purpose  and  not 
effective  for  that  purpose,  then  their  presence,  as  I  have 
said  to  you,  upon  this  tender  will  not  meet  the  requirements 
of  this  law,  and  of  that  you  will  judge  from  the  testimony. 
Verdict  for  Government,  4  counts. 


UNITED  STATES  v.  CHICAGO,  ROCK  ISLAND  &  PA- 
CIFIC RAILWAY  CO. 

(In  the  District  Court  of  the  United  States  for  the  Western  District  of 

Missouri. ) 

[173   Fed.   G84.] 

Decided  February  21,  1908. 

(Syllabus  by  the  court.) 

1.  The  Safety  Appliance  Act  of  March  2,  1893,  as  amended,  is  a  reme- 

dial statute  and  must  have  such  construction  as  will  accomplish 
the  evident  intent  of  Congress.  Johnson  v.  Southern  Pacific  Com- 
pany, 196  U.  S.,  1. 

2.  The  placing  of  a   "bad   order"  card  on  a  car  as  notice   to  the  em- 

ployees that  the  car  is  defective  does  not  prevent  the  movement  of 
the  car  in  a  defective  condition  from  being  unlavs^ful. 

3.  While  the  statute  is  in  some  aspects  penal,  recovery  oi  the  penalty 

is  had  by  means  of  a  civil  action  wherein  it  is  necessary  only  to 
prove  the  facts  showing  a  violation  by  a  preponderance  of  the 
evidence. 

STATEMENT  OF  FACTS. 

The  defendant  was  charged  with  having  violated  the 
safety-appliance  act  and  an  action  in  debt  was  brought  to 
recover  the  statutory  penalty  of  $100.     A  jury  was  waived 


792  FEDERAL   SAPETY   APPLIANCE   ACT. 

and  the  trial  was  to  the  court.  The  evidence  showed  that 
the  defendant  hauled  an  Erie  coal  ear  with  the  uncoupling 
chain  "kinked"  and  wedged  in  the  coupler  head  on  one 
end  of  the  car.  In  that  condition  it  was  impossible  to 
operate  the  coupler  without  a  man  going  between  the  ends 
of  the  cars.  One  of  defendant's  engines  coupled  on  to  a 
"cut"  of  cars  in  which  was  this  defective  car,  and  hauled 
it  to  the  yard  of  the  Chicago,  Burlington  &  Quincy  Rail- 
way Company  where  a  number  of  other  cars  were  coupled 
on  to  the  "cut."  The  entire  lot  was  then  hauled  by  the 
defendant  over  to  the  Chicago  &  Alton  yards  where  five 
more  cars  were  attached.  One  of  the  defendant's  inspectors 
undertook  to  operate  the  coupler  in  the  Union  Depot  and 
found  the  car  defective.  He  then  affixed  a  "bad  order"  card 
to  the  car,  indicating  the  nature  of  the  defect.  The  car  was 
then  taken  by  the  defendant  to  Armourdale.  Kans.  The 
defendant  contended  that  by  placing  the  "bad  order"  card 
upon  the  car,  it  had  complied  with  the  statute  and  was  not 
liable  for  the  penalty. 

Area  S.  Van  Valkenburg,  United  States  attorney:  Les- 
lie J.  Lyons,  assistant  United  States  attorney,  for  the  Uni- 
ted States. 

Frank  Sebree,  for  defendant. 

OPINION   OF    THE    COURT. 

McPherson,  District  Judge: 

I  find  in  the  Johnson  case  as  reported  in  196  U.  S.,  1, 
that  while  the  rule  of  construction  as  to  penal  statutes 
requires  such  statutes  to  be  strictly  construed,  yet  in  the 
safety-appliance  statute  the  design  to  give  relief  was  more 
dominant  than  to  inflict  punishment,  the  act  therefore 
falling  within  the  rule  applieable  to  statutes  to  prevent  fraud 
upon  the  revenue,  and  for  the  collection  of  customs.     The 


APPENDIX    G. 


793 


rule'  there  laid  down,  is  that  the  statute  is  to  be  construed 
sensibly  and  as  a  whole  with  a  view  to  accomplish  the  obvious 
intent  of  Congress.  In  that  decision  the  Supreme  Court 
reversed  the  Circuit  Court  of  Appeals  for  this  circuit, 
because,  as  it  said,  the  view  of  the  latter  court  has  been 
too  narrow.  The  great  purpose  of  the  statute  was  to  remedy 
conditions.     That  is  the  point  of  it. 

It  is  remedial  and  preventive,  and  if  observed  will  reduce 
to  a  minimum  the  crippling  and  killing  of  railroad 
employees  in  this  country.  As  I  said  yesterday,  every  one 
of  us  can  recollect  fifteen  or  twenty  years  ago  that  about 
four  times  out  of  five  when  you  went  to  shake  hands  with 
a  railroad  employee,  either  a  switchman,  brakeman,  or 
freight  conductor  that  had  been  raised  from  a  brakeman 
you  took  hold  of  a  crippled  hand;  fingers  gone,  sometimes 
an  entire  hand  or  leg  gone,  because  of  the  extraordinary 
hazardous  business  of  railroading. 

The  Supreme  Court  of  the  United  States  upheld  the 
Iowa  statute  with  reference  to  liability  because  of  the 
negligence  of  a  co-employ  upon  the  ground  that  the 
legislature  had  the  authority  to  single  out  the  railroad  and 
make  them  liable  for  the  negligence  of  a  co-employee,  while 
the  same  would  not  be  liable  if  applied  to  a  manufacturing 
plant,  solely  because  of  the  extremely  hazardous  business 
of  railroading,  placing  railroads  in  a  distinct  class. 

You  can  scarcely  pick  up  a  paper  but  what  you  read  of 
some  accident  to  an  employee,  but  it  used  to  be  ten  times 
worse.  Up  in  Iowa  we  do  not  have  one  accident  now  to 
where  we  used  to  have  ten.  The  dockets  used  to  be  crowded 
with  work  by  reason  of  the  number  of  these  accidents,  and 
the  percentage  has  greatly  decreased.  I  do  not  know  how 
it  is  in  Kansas  City,  but  if  it  has  not  decreased,  it  is  on 
account  of  the  marvelous  growth  of  Kansas  City.  But  I 
am  sure  the  percentage  has  decreased. 

That  is  the  purpose  of  this  statute,  and  everyone  who  has 
humane  views  commends  this  statute.  While  I  suppose,  of 
course,  there  are  no  statistics  to  prove  it,  I  have  no  doubt 


794 


FEDERAL   SAPETY    APPLIANCE   ACT. 


that  the  enforcement  of  this  statute  has  been  a  money-saving 
proposition  to  the  railroad  companies.  I  have  no  doubt 
that  the  occasional  infliction  of  a  small  penalty  of  $100 
prevents  many  a  $5,000  and  $10,000  judgment. 

But  it  can  not  be  said  that  the  statute  was  enacted  for 
that  purpose.  It  was  enacted  for  the  protection  of  railroad 
employees.  It  is  within  the  Imowledge  of  every  one  of  us 
that  everybody  is  negligent  almost  every  day  of  his  life.  We 
cross  these  street-car  tracks  without  a  thought  in  our  minds 
that  we  are  within  miles  of  a  track.  Sometimes  we  are  reading 
a  paper,  or  visiting  with  some  friend,  and  if  we  are  run 
down  we  could  not  recover  because  of  our  own  gross 
contributory  negligence.  In  a  great  percentage  of  these 
railroad  cases  the  employees  are  denied  a  recovery  because 
of  their  own  negligence.  You  seldom  have  a  case  but  what 
somebody  is  negligent.  If  there  was  no  negligence,  there 
would  be  but  few  cripples  or  untimely  deaths. 

What  is  the  use  of  putting  up  a  red  card  on  the  end 
of  a  car^  as  was  done  after  the  United  States  inspectors 
spotted  the  car,  except  to  call  the  attention  of  some  one  to 
the  fact  that  it  needed  repairs  ?  That  does  not  stop  brakemen 
from  going  in  there.  Men  are  negligent  because  they  are 
unthinking  for  the  time  being,  and  some  of  them  have  a 
dare-devil  spirit.  Any  day  you  can  stand  in  the  railroad 
yards  and  see  a  switchman  who  stands  in  the  middle  of  the 
track.  The  switch  engine  comes  to  him.  He  takes  his  life 
in  his  hands  every  time  he  does  it,  but  he  steps  on  the 
switchboard  and  looks  around  for  the  applause  of  the  crowd 
about  as  much  as  to  say,  "See  my  agility."  You  can  not 
stop  that.  You  can  not  stop  a  man  from  going  in  between 
cars  by  putting  a  red  sign  on  it,  and  they  will  not  report 
it,  because  they  do  not  care  to  have  the  hostility  of  the 
company  that  employs  them,  and  they  do  not  say  anything 
about  it  unless  they  get  hurt.  You  and  I  would  do  the 
same. 

Naw,  while  this  is  a  penal  statute,  it  has  the  form  of  a 
civil   action.      There   was   a  time    when    the   courts   held   in 


APPENDIX    G. 


795 


slander  and  libel  cases  where  the  words  used  imputed  a 
crime  that  the  proof  must  convince  the  court  or  jury- 
beyond  a  reasonable  doubt,  but  I  understand  that  the  rule 
has  been  abrogated.  That  weight  of  proof  is  not  required 
anywhere,  except  in  proving  an  indictment,  and  this  is  not 
that  kind  of  a  case. 

Now,  this  inspection  of  the  23d  was  very  indefinite  and 
vague.  One  man  has  no  recollection  about  it  at  all.  He 
placed  thereon  a  mark  ''0.  K. "  The  other  man  has  no 
recollection  whatever,  except  the  memorandum  in  his  book. 
That  kind  of  an  inspection  will  not  do.  The  next  thing  we 
know  this  car  is  on  the  way,  and  my  notion  about  it  is  that 
the  car  would  have  been  taken  to  St.  Louis  in  that  condition 
if  it  had  not  been  that  these  Government  inspectors 
happened  along  at  that  time.  Now,  if  these  Government 
inspectors,  who  in  all  cases  are  ex-railroad  employees,  could 
see  this,  why  could  not  this  train  crew  see  it  ?  And  they 
would  not  have  seen  it  when  they  did  if  they  had  not  seen 
these  Government  inspectors  riding  this  ear,  and  they  then 
supposed  something  was  wrong.  The  two  Government 
inspectors  were  on  this  particular  car,  so  if  the  train  was 
cut  they  would  still  be  with  the  car,  I  suppose. 

Now,  here  is  a  case  of  $100.  If  the  penalty  were  extreme, 
a  jury  would  hesitate  more  about  inflicting  the  penalty.  I 
would  like  it  better  if  the  same  penalty  w^as  fixed  in  these 
twenty-eight  hour  cases.  I  have  tried  a  good  many  of  them, 
and  I  have  never  yet  tried  one  that  called  for  more  than  the 
minimum  penalty,  and  I  have  never  inflicted  more  than 
that.  In  most  cases  there  is  some  substantial  reason  for 
delay,  and  too  often  a  good  deal  of  malice  is  behind  the 
prosecution,  not  on  the  part  of  the  Government  officials, 
but  on  the  part  of  the  shipper.  He  believes  he  has  been 
charged  a  little  too  much  for  his  hay  or  grain,  or  has  some 
other  complaint.  In  nearly  every  case  under  that  statute 
that  I  have  tried,  I  have  found  that  kind  of  a  spirit  behind 
the  prosecution.  Here  is  a  class  of  cases  where  it  is  impossible 
to  have  any  malice  back  of  the  prosecution.    The  penalty  is 


796  FEDERAL   S^^ETY    APPLIANCE   ACT. 

light,  and  in  every  ease  where  the  proofs  are  reasonably 
sufficient,  I  think  it  is  wise  and  proper  and  benevolent  to 
enforce  the  penalty.  And  I  think  it  is  an  act  of  benevolence 
to  the  company  itself  to  see  to  it  that  these  things  are 
broken  up.  and  thereby  lessen  the  amount  they  have  to  pay 
in  personal  injury  cases.  There  are  many  thousand 
employees  in  this  hazardous  business,  and  I  do  not  think  in 
this  case  there  is  any  sufficient  excuse  shown.  There  is  no 
telling  how  lousr  that  car  had  been  in  that  condition,  and 
I  have  no  doubt  that  if  these  Government  inspectors  had  not 
been  there,  that  car  would  have  been  hauled  across  the  state 
of  Missouri  and  then  to  Pennsylvania,  and  with  what  result 
nobody  l^nows. 

The  judgment  will  be  for  the  payment  of  the  penalty 
of  $100,  and  ninety  days  for  a  bill  of  exceptions  will  be 
granted. 


UNITED  STATES  v.  SOUTHERN  RAILWAY  COMPANY. 


In  the  District  Court  of  the  United  States  for  the  District  of   South 

Carolina. 

Decided  February  2.',,  1909. 

1.  A  suit  under  the  safety  appliance  act  to  recover  penalties  for  viola- 

tions of  said  act  is  civil  and  plaintiff  is  required  only  to  prove 
its  case  by  a  preponderance  of  the  evidence. 

2.  Although   the   defective   car   does  not   contain   any   interstate   traflSc, 

yet  if  it  is  hauled  in  a  train  which  contains  a  car  that  is  loaded 
with  interstate  traffic,  the  act  applies. 

3.  Inspectors    in    tlie    employ   of   the   Interstate    Commerce   Commission 

are  not  ri'quircil  {<>  iiifonii  tlic  employees  of  the  defendant  of  the 
facts  found. 

4.  The  act  imposes  upon  the  railway  company  an  ahsolute  duty  to  main- 

tain  its  couiiliiii:  aj)pliaTH'<'   and  grab-irons  or   hand-holds   in  op- 
erative condition. 


APPENDIX    G. 


797 


5.  A  car  coming  without  the  state  and  being  switched  from  one  yard  in 
the  state  to  another  yard  in  the  state  in  furtherance  of  a  design 
to  transfer  it  to  its  final  destination  is  engaged  in  interstate 
traffic. 

Ernest  F.  Cochran,  United  States  Attorney,  and  Ulysses 
Butler,  special  assistant  United  States  Attorney,  for  plain- 
tiff. 

Jacob  IMuller  for  defendant. 


INSTRUCTIONS   TO    JURY. 

Brawley,  Distinct  Judge  (charging  jury)  : 

The  Court  is  requested  by  the  learned  counsel  for  the 
plaintiff  to  give  you  these  instructions: 

1.  This  is  a  civil  case  and  the  Government  is  only  required 
to  prove  its  case  by  a  preponderance  of  the  evidence  and  not 
beyond  a  reasonable  doubt.  United  States  v.  L.  V.  Ry.  (not 
yet  reported),  District  Court;  United  States  v.  P.  tfc  R.  Ry. 
162  Fed.  Rep.,  403  ;  United  States  v.  Chicago  Great  Western 
Ry.,  162  Fed.  Rep.  775;  United  States  v.  B.  &  0.  Swn.  R.  (C. 
C.  A.),  159  Fed.  Rep.,  133.    Granted. 

2.  If  the  jury  find  that  the  defendant  hauled  a  car  which 
was  defective  in  not  complying  with  the  safety-appliance  law 
as  to  coupling  appliances,  or  grabirons,  or  handholds,  al- 
though the  defective  car  does  not  contain  any  interstate  traf- 
fic, yet  if  it  is  hauled  in  a  train  that  contains  a  car  that  is 
loaded  with  interstate  traffic,  then  the  act  is  violated,  even 
though  the  car  which  contains  the  interstate  traffic  may  not 
itself  be  defective.  United  States  v.  L.  &  N.,  162  Fed.  Rep., 
185 (  District  Court)  ;  United  States  v.  Chicago  Great  Western 
Ry.,  162  Fed.  Rep.,  775  (District  Court)  ;  United  States  v. 
Wheeling  &  L.  E.  (not  yet  reported),  District  Court.  Granted. 

3.  Whenever  a  car  is  loaded  in  one  state  of  the  Union 
with  a  commodity  which  is  destined  for  another  state,  and 
begins  to  move,  then  interestate  commerce  has  begun  and  does 


798  FEDERAL  SAFETY  APPLIANCE  ACT, 

not  cease  till  the  car  has  arrived  at  its  point  of  final  desti- 
nation. The  Daniel  Ball,  10  Wall.,  557;  United  States  v..  Belt 
By.  (not  yet  reported),  District  Court.  Granted. 

4.  Inspectors  in  the  emploj^  of  the  Interstate  Commerce 
Commission  are  not  required  to  inform  the  employes  of  the 
defendant,  when  they  make  the  inspection  of  the  cars  sued 
upon,  of  the  defects  found  in  the  appliances ;  the  jury  should 
not  discredit  their  testimony  because  the  inspectors  did  not 
so  inform  the  employes  of  the  defendant.  United  States  v. 
Chicago  Great  Western  By.,  162  Fed.  Rep.,  775.     Granted. 

5.  The  safety-appliance  law  of  Congress  imposes  upon 
a  railway  company  an  absolute  duty  to  maintain  the  pre- 
scribed coupling  appliances  and  grabirons  or  handholds  in 
operative  condition,  and  it  is  not  satisfied  by  the  exercise 
of  reasonable  care  to  that  end.  St.  L.,  I.  M.  cf-  S.  v.  Taylor, 
210  U.  S.,  281;  United  States  v.  A.  T.  &  S.  F.  By.  (C.  C. 
A.),  163  Fed.  Rep.,  517;  United  States  v.  D.  &  B.  G.  B.  (C. 
C.  A.),  163  Fed.  Rep.,  519;  United  States  v.  P.  &  B.,  162 
Fed.  Rep.,  403.  Granted. 

The  court  is  requested  by  the  defendant  to  give  you 
certain  instructions: 

1.  This  being  a  suit  by  the  Government  to  recover  a 
penalty  the  rules  of  criminal  procedure  and  evidence  may  ap- 
ply, and  the  defendant  is  presumed  to  be  innocent  of  the 
violations  of  law  charged  against  it  until  it  is  proved  to 
have  been  guilty  beyond  a  reasonable  doubt. 

Court.  The  court  refuses  that  instruction.  The  rule 
is  this:  This  is  a  civil  action  to  recover  a  penalty,  and  as 
in  all  civil  cases  the  plaintiff  must  establish  his  case  by  clear 
and  satisfactory  evidence,  and  the  jury  must  determine,  if 
there  is  testimony  on  either  side,  by  the  preponderance  of 
the  testimony,  the  careful  weight  of  the  testimony. 

2.  As  regards  any  material  issue  of  fact  in  this  case, 
if  the  jury  have  any  doubt  they  should  solve  such  doubt  in 
favor  of  the  defendant. 

Court.  The  court  can  not  give  you  the  instruction  in 
that   form.   That   is  disposed   of  by  what  the  court  says  in. 


APPENDIX    G.  799 

refusing  the  first  instruction.  They  must  establish  it  by  the 
preponderance  of  the  testimony.  If  you  have  any  doubt  as 
to  the  preponderance  of  the  testimony,  then  the  plaintiff  can 
not  recover. 

3.  In  a  suit  by  the  Government  under  the  safety-appli- 
ance acts  to  recover  a  penalty  for  an  alleged  violation  of  the 
law  by  a  railway  company,  these  acts  can  not  be  regarded  as 
imposing  upon  the  railway  company  an  absolute  duty  in  the 
sense  that  it  becomes  penally  liable  for  a  violation  of  the  law 
without  regard  to  the  question  of  intent  or  the  question  of 
diligence  on  the  part  of  the  company  to  avoid  such  violation. 
Refused. 

4.  If  a  violation  of  these  safety-appliance  acts  by  a  rail- 
way company  is  unintentional  and  unavoidable  on  the  part 
of  the  company,  it  is  not  liable  to  the  penalty  prescribed  by 
the  acts. 

Court.  The  court  can  not  give  that  instruction.  The  ques- 
tion of  intention  does  not  come  into  play  at  all. 

5.  The  jury  in  this  case  can  not  find  a  verdict  for  the 
plaintiff  in  this  action  for  any  other  defects  than  those  al- 
leged in  the  complaint  to  have  been  defective. 

Court.  The  court  gives  you  that  instruction,  but  in  con- 
struing the  complaint  you  must  give  to  it  fair  and  reason- 
able interpretation. 

6.  If  the  jury  have  a  reasonable  doubt  as  to  whether 
the  cars  alleged  in  the  complaint  to  have  been  defective  were 
in  fact  defective  as  alleged  in  the  complaint,  they  should 
find  a  verdict  for  the  defendant.  Refused. 

7.  If  the  court  refuses  No.  6,  then  the  burden  of  proof 
is  on  the  plaintiff  in  this  case,  if  in  the  minds  of  the  ju- 
rors the  evidence  on  any  issue  of  facts  is  evenly  balanced  be- 
tween the  plaintiff  and  the  defendant,  they  should  resolve  that 
issue  in  favor  of*  the  defendant.     Granted. 

8.  Within  the  constitutional  meaning  and  extent  of  the 
safety-appliance  acts,  it  can  not  be  considered  that  a  car 
whose  destination  is  a  point  without  the  state  is  being  used 
in  interstate   commerce   when  being  shifted   from  point  to 


800 


FEDERAL  SAFETY  APPLIANCE  ACT. 


point  in  a  railway  yard  by  a  shifting  engine  within  the  state, 
and  is  not  in  the  course  of  an  extended  movement  beyond 
the  limits  of  the  state. 

Court.  The  court  interprets  that  instruction  as  intended 
to  appl}^  to  the  movement  of  a  car  containing  coal,  which 
had  been  brought  from  some  point  in  Tennessee  and  was  in- 
tended for  some  point  in  the  state  of  Georgia,  and  which  was 
moved  from  one  of  the  yards  of  the  company  to  another 
yard  of  the  company.  If  you  find  the  fact  to  be  that  that 
ear  had  been  engaged  in  interstate  commerce  and  had  come 
from  a  point  in  Tennessee,  and  was  shifted  to  another  yard 
of  the  defendants  in  furtherance  of  the  design  to  have  it 
transferred  to  a  point  in  Georgia,  then  it  was  interstate 
commerce  within  the  meaning  of  the  law.  As  to  the  defect 
in  the  engine,  the  court  instructs  you  that  if  when  the  shift- 
ing engine  began  the  movement  of  that  car  from  one  yard  to 
the  other,  that  engine  was  in  good  condition,  the  coupler  was 
in  a  safe  condition,  and  not  defective,  and  if  in  the  transit 
between  the  yards  it  became  defective,  then  the  company 
would  not  be  liable,  if  they  repaired  the  defect  as  soon  as 
possible.  All  mechanical  appliances  are  liable  to  get  out  of 
order  in  the  use,  and  all  that  the  company  can  fairly  be  re- 
quired to  do  is  to  see  that  when  the  cars  began  to  move,  when 
the  engine  began  to  move,  that  all  of  the  appliances  were 
perfect,  and  if  in  the  course  of  the  movement,  as  the  re- 
sult of  the  movement  it  became  defective,  then  the  act  would 
not  apply  to  it,  provided  the  company  repaired  it  before 
moving  again. 

9.  The  interstate  transportation  by  a  railway  company 
of  its  own  property  is  not  "interstate  commerce." 

Court.  The  court  must  refuse  that  instruction  in  that 
shape.  It  will  instruct  you  that  if  the  car  referred  to,  con- 
taining sand,  was  being  moved  from  South  Carolina  into 
North  Carolina  for  the  company's  own  purjioses,  if  it  was 
carried  on  a  train  which  was  engaged  in  interstate  commerce, 
and  this  car  was  defective,  it  falls  within  the  denunciation 
of  the  statute  still. 


APPENDIX    G.  yOl 

UNITED   STATES  v.  ATLANTIC   COAST  LINE   RAIL- 
ROAD COMPANY. 

In  the  District  Court  of  the   United  States  for  the  District  of  South 

Carolina. 

Decided  February  2 J/,  1909. 

1.  A  suit  under  the  safety-appliance  act  to  recover  penalties  for  viola- 

tions of  said  act  is  civil  and  plaintiff  is  required  only  to  prove  its 
case  by  a  preponderance  of  the  evidence. 

2.  Although   the   defective   car   does   not  contain   any   interstate   traffic, 

yet  if  it  is  hauled  in  a  train  which  contains  a  car  that  is  loaded 
with  interstate  traffic,  the  act  applies. 

3.  The  act  imposes  upon  the  the  railway  company  an  absolute  duty  to 

maintain  its  coupling  appliances  and  grab-irons  or  handholds 
in  operative  condition. 

4.  Whenever  a   car   is   loaded  in  one   state  of  the  Union  with   a  com- 

modity which  is  destined  for  another  state^  and  begins  to  move, 
then  interstate  commerce  has  begun  and  does  not  cease  till  the 
the  car  has  arrived  at  its  point  of  final  destination. 

5.  Inspectors   in   the   employ   of   the   Interstate   Commerce   Commission 

are  not  required  to  inform  the  employees  of  the  defendant  of  the 
defects  found. 

Ernest  F.  Cochran,  United  States  Attorney,  and  Ulys- 
ses Butler,  special  assistant  United  States  attorney,  for 
plaintiff. 

B.  A.  Hagood  and  L.  W.  McLemore,  for  defendant. 

Brawley,  District  Judge  (charging  jury)  : 

Counsel  for  the  Government  has  requested  the  follow- 
ing instructions : 

1.  This  is  a  civil  case  and  the  Government  is  only  re- 
quired to  prove  its  case  by  a  preponderance  of  the  evidence 
and  not  beyond  a  reasonable  doubt.  United  States  v.  L.  V. 
By.  (not  yet  reported),  District  Court;  United  States  v.  P.  <& 
B.  By.,  162  Fed  Rep.,  403;  United  States  v.  Chicago  Great 


802  FEDERAL   SAFETY    APPLIANCE   ACT. 

Western  By.,  162  Fed  Rep.,  775;  United  States  v.  B.  (£•  0. 
Swn.  R.  (C.  C.  A.),  159  Fed.  Rep.,  33. 

Court  :  The  court  gives  you  that  instruction.  In  other 
words,  you  will  decide  this  case  as  you  would  any  other  civil 
case,  and  not  as  in  criminal  eases,  where  the  Government 
must  make  out  its  case  beyond  a  reasonable  doubt.  You 
must  decide  it  by  the  preponderance  of  the  evidence. 

2.  If  the  jury  find  that  the  defendant  hauled  a 
car  which  was  defective  in  not  complying  with  the  Safety- 
Appliance  Law  as  to  coupling  appliances  or  grab  irons  or 
handholds,  although  the  defective  ear  does  not  contain  any 
interstate  traffic,  yet  if  it  is  hauled  in  a  train  which  con- 
tains a  car  that  is  loaded  with  interstate  traffic,  then  the 
act  is  violated,  even  though  the  car  which  contains  the  inter- 
state traffic  may  not  itself  be  defective.  United  States  v. 
L.  d  iV.,  162  Fed.  Rep.,  185  (District  Court)  ;  United  States 
V.  Chicago  Great  Western  By.,  162  Fed  Rep.,  775  (District 
Court)  ;  United  States  v.  Wheeling  &  L.  E.  (not  yet  re- 
ported), District  Court.  Granted. 

3.  Whenever  a  car  is  loaded  in  one  state  of  the  Union 
with  a  commodity  which  is  destined  for  another  state,  and 
begins  to  move,  then  interstate  commerce  has  begun,  and 
does  not  cease  till  the  car  has  arrived  at  its  point  of  final 
destination.  The  Daniel  Ball,  10  Wall.,  557;  United^  States 
v.  Belt  By.   (not  yet  reported).  District  Court.     Granted. 

4.  Inspectors  in  the  employ  of  the  Interstate  Com- 
merce Commission  are  not  required  to  inform  the  employes  of 
the  defendant,  when  they  make  the  inspections  of  the  cars 
sued  upon,  of  the  defects  found  in  the  appliance  -.  the  .jury 
should  not  discredit  their  testimony  because  the  inspectors 
did  not  so  inform  the  employes  of  the  defendant.  United 
States  V.  Chicago  Great  Western,  162  Fed.  Rep.,  775. 
Granted. 

5.  The  safety-appliance  law  of  Congress  imposes  upon 
a  railway  company  an  absolute  duty  to  maintain  the  pre- 
scribed coupling  appliances  and  grab-irons  or  handholds  in 
operative  condition,  and  is  not  satisfied  by  the  exercise  of 


APPENDIX    G.  803 

reasonable  care  to  that  end.  St.  L.,  I.  M.  &  8.  v.  Taylor,  210 
U.  S.,  281;  United  States  v.  A.,  T.  &  8.  F.  By.  (C.  C.  A.), 
163  Fed.  Rep.,  517;  Vnited  States  v.  D.  &  R.  G.  R.  (C.  C. 
A.),  163  Fed.  Rep.,  519;  United  States  v.  P.  &  R.,  162  Fed. 
Rep.,  403.  Granted. 

6.  You  are  instructed  that  if  you  believe  from  a  pre- 
ponderance of  the  evidence  that  the  defendant  hauled  the 
cars,  as  alleged  in  the  first,  second,  third,  fourth,  fifth,  sixth, 
seventh  and  eighth  counts  of  plaintiff's  petition,  when  said 
cars  were  not  equipped  with  couplers  coupling  automatically 
by  impact  and  which  could  be  uncoupled  without  the  neces- 
sity of  a  man  going  between  the  ends  of  the  cars,  or  was 
not  equipped  with  secure  handholds,  or  with  a  grab-iron, 
then  your  verdict  should  be  for  the  Government.  United 
States  V.  Nevada  County  N.  G.  R.  (not  yet  reported),  Dis- 
trict Court. 

Court  :  That  seems  to  be  already  embraced  in  the  pre- 
vious instruction ;  the  court  gives  you  that  instruction. 

Court:  Mr.  Foreman  and  gentlemen:  The  Government 
has  offered  testimony  tending  to  show  that  9  cars  went  out 
from  Florence  on  February  19  of  last  year  in  a  defective 
condition,  and  the  inspectors  for  the  Government,  whose 
duty  it  was  to  look  after  these  matters,  testified  as  to  the  na- 
ture of  those  defects  and  that  they  saw  the  cars  moving 
out,  and  that  they  were  engaged  in  interstate  commerce.  The 
defendant  company  has  offered  testimony  tending  to  show 
that  the  inspector  employed  by  the  company,  whose  duty 
it  was  to  make  repairs  within  the  car-repair  yard,  repaired 
at  least  7  cars,  or  had  it  done  under  his  direction,  and  that 
the  cars  alleged  by  the  Government's  witnesses  to  be  defec- 
tive were  not  in  point  of  fact  defective  in  the  particulars  re- 
ferred to.  Now,  it  appears  from  the  testimony  that  the  in- 
spectors made  their  presence  known  to  the  yardmaster  of 
the  defendant  company  when  they  arrived  at  the  yards,  some 
time  in  the  morning,  and  they  have  given  you  the  days  and 
hours  when  they  made  their  inspection  of  the  cars.  If  you 
believe  their  testimony,  the  ears  were  defective  at  the  time    ■ 


804  FEDERAL  SAFETY  APPLIANCE  ACT. 

they  examined  them;  whether  the  defects  \iere  repaired  af- 
terwards, after  the  government  inspectors  saw  them  and  be- 
fore they  went  out,  is  a  question  for  you,  and  the  credibility 
of  the  witnesses  is  a  question  for  you.  The  fact  that  the 
government  inspectors  did  not  inform  the  employes  of  the 
company  of  the  fact  that  they  found  these  defects  is  not 
to  DC  taken  by  you  as  any  reason  for  discrediting  their  tes- 
timony. The  law  does  not  require  them  to  make  such  report. 
The  fact  that  they  were  on  the  ground — were  known  to  be 
there  by  the  yardmaster — is  a  circumstance  to  be  considered 
by  you  in  determining  whether  or  not  that  fact  would  or 
would  not  make  the  railroad  parties  more  than  usually  vig- 
ilant on  such  an  occasion,  put  them  on  their  guard,  the  in- 
spectors being  there,  going  about  and  looking  at  the  cars, 
whether  or  not  that  fact  was  not  likely  to  make  lazy  people 
in  charge  of  the  yards  take  extra  precaution  to  see  that  the 
cars  in  the  yard  were  in  proper  condition,  is  a  circumstance. 
Now,  on  behalf  of  the  Government  it  is  contended  that 
even  if  the  repairs  proved  to  have  been  made  by  the  witness, 
Summerford,  car  repairer,  even  if  he  made  the  repairs  which 
he  testifies  to,  that  they  were  not  the  defects  that  the  Govern- 
ment's witnesses  have  pointed  out.  That  is  a  question  of  fact 
for  you.  which  you  must  determine  by  your  recollection  of 
what  the  witnesses  for  the  Government  have  testified  to  on 
that  subject.  Of  course,  if  they  made  other  repairs  than  those 
which  the  Government  alleged  were  the  defects,  that  would 
not  relieve  the  company,  but  if  the  specific  defects  which  the 
testimony  of  the  government  inspectors  pointed  out,  if  they 
were  not  repaired  before  the  cars  left,  of  course  the  com- 
pany is  liable.  The  company  has  no  record  of  any  repairs 
made  upon  cars  named  in  the  first  and  ninth  causes  of 
action,  and  if  you  believe  the  testimony  of  the  government 
inspectors  that  those  cars  were  defective  in  the  particulars 
pointed  out,  it  would  be  your  duty  in  that  ease  to  find  a 
verdict  for  the  Government  upon  those  2  cars.  As  to  the 
7  othf-r  cars,  it  depends  entirely  upon  your  conclusion  as 
t(j   the   testimony   on    th(>    f)()int  whether   or  not   those   cars 


APPENDIX    G.  805 

were  repaired  before  they  went  out.  If  they  were,  why  your 
duty  would  be  to  find  a  verdict  for  the  defendant;  if  they 
were  not,  it  would  be  your  duty  to  find  a  verdict  for  the 
plaintiff  in  the  full  amount  claimed  by  them.  If  you  find 
for  the  Government  you  will  find  so  many  dollars;  if  you 
find  for  the  Government  as  to  the  whole  amount  then  you 
will  find  for  the  Government  $900.  If  you  find  for  the  de- 
fendant you  will  say:  "We  find  for  the  defendant."  If  you 
find  that  7  of  the  cars  were  repaired  before  they  went  out, 
you  will  find  in  any  event  $200. 


(United  States  Circuit  Court  of  Appeals,   Sixth  Circuit.) 

THE  UNITED  STATES  OF  AMERICA,  Plaintiff  in  error, 
V.  THE   ILLINOIS  CENTRAL  RAILROAD   COM- 
PANY, Defendant  in  error. 

[170  Fed.  542.] 

Error  to  the  District  Court  of  the  United  States  for  the 
Western  District  of  Kentucky. 

(Submitted  January  13,  1909.     Decided  March  2,  1909.) 

1.  An  action  by  the  Government  to  recover  a  penalty  under  tlie  safety- 

appliance  act  is  a  civil  action  with  all  the  incidents  of  a  civil 
action. 

2.  From  an  adverse  judgment  in  the  District  Court  the  United  States 

may  have  a  writ  of  error  to  the  Court  of  Appeals. 

3.  If  a  railroad  company  starts  a  car  in  transit  with  a  coupling  so  de- 

fective that  the  defect  could  have  been  discovered  by  inspection 
it  will  be  liable  under  the  safety-appliance  act ;  but  if  a  car  when 
started  in  transit  had  no  discoverable  defect,  the  company  will 
not  be  liable  for  the  use  of  the  car  in  that  transit  for  a  defect 
occurring  during  such  transit,  if  there  has  been  no  subsequent 
lack  of  diligence  either  in  discovering  or  repairing  the  defect. 

4.  When   the  Government   has   proven   a   car  was   laden  with   interstate 

commerce,    has    defective    couplings,    and    was    hauled    over    the 


806  FEDERAL  SAFETY  APPLIANCE  ACT. 

defendant's  road,  the  defendant  has  the  burden  to  show  that  it 
used  all  peasonable  possible  endeavor  to  perform  its  duty  to 
discover  and  correct  the  defect. 
5.  The  statute  does  not  require  the  railroad  company  to  have  its  cars 
properly  equipped  at  all  times  and  under  all  circumstances  when 
in  use,  in  order  to  escape  a  liability  to  a  penalty. 

Before    Severens,    Circuit    Judge,    and    Knappen    and 
Sanford,  District  Judges. 

Se\T]rens,  Circuit  Judge,  delivered  the  opinion  of  the 
Court. 

This  is  an  action  in  the  nature  of  a  common  law  action 
of  debt  brought  in  the  District  Court  by  the  United  States 
against  the  Illinois  Central  Railroad  Company  to  recover 
penalties  of  $100  each  for  twenty-two  alleged  infractions  of 
Section  6  of  the  Safety  Appliance  Act  of  March  3,  1893, 
each  offense  being  set  out  in  a  separate  count.  Some  of  these 
counts  were  for  hauling  cars  in  inter-state  traffic  with  de- 
fective automatic  couplings,  some  with  defective  grab-irons 
and  some  with  draw  bars  not  on  the  proper  level  above  the 
track.  There  was  a  plea  of  not  guilty  to  each  count,  and 
special  matters  of  defense  were  alleged  in  the  several  answers. 
The  issues  were  tried  by  a  .jury.  A  stipulation  as  to  certain 
facts  was  made  by  the  attorneys  for  the  parties  and  filed,  of 
which  the  following  is  a  copy: 

"Defendant,  for  the  purpose  of  this  ease,  admits: 
"1.     That  it  is  a  corporation  doing  business  in  Illinois 
and  Kentucky,  and  is  a  common  carrier,  transporting  over 
its  railroad  in  Kentucky,  both  cars  carrvino-  inter-state  com- 
merce and  car.s  carrying  shipments  wholly  intra-state. 

"2.  That  in  each  of  the  cars  in  paragraphs  1,  5,  6,  7, 
10,  11.  12.  14,  15,  16,  17.  18,  19,  20,  21  and  22  contained 
inter-state  shipments;  that  each  of  the  cars  mentioned  in 
paragraphs  4.  9  and  13,  transported  shipments  purely  intra- 
state, i.  o..  from  one  point  in  Kentucky  to  another  point  in 
Kentucky,  and  that  each  one  of  said  cars  was  hauled  by 
defendant  in  a  train  in  which  there  was  at  least  one  other 


APPENDIX    G.  807 

car  that  at  the  time  contained  an  inter-state  shipment;  and 
that  the  engines  mentioned  in  paragraphs  2,  3  and  8  were 
used  by  defendant  wholly  between  points  in  Kentucky,  to- 
wit:  Between  Louisville  and  Central  City,  and  that  said 
engines  hauled  trains  at  the  times  mentioned  in  said  para- 
graphs 2,  3  and  8  composed  of  cars,  some  of  which  contained 
traffic  purely  intra-state,  and  each  one  of  which  trains  con- 
tained the  car  mentioned  in  said  paragraphs  respectively 
containing  inter-state  freight." 

Evidence  bearing  upon  the  issues  was  adduced  by  the 
parties,  and  the  jury  having  been  instructed  by  the  Court, 
rendered  a  verdict  for  the  plaintiff  on  seven  of  the  counts 
in  the  sum  of  $100  each,  and  for  the  defendant  on  the  other 
fifteen. 

The  plaintiff  brings  the  case  here  on  a  writ  of  error. 
The  first  question  arises  upon  a  motion  to  dismiss  the  writ 
upon  the  ground  that  the  proceedings  in  the  Court  below 
were  essentially  of  a  criminal  nature,  and  that  the  United 
States  cannot  have  a  writ  of  error  upon  proceedings  of  that 
description.  It  seems  proper  to  advert  to  certain  funda- 
mental considerations  upon  which  the  procedure  in  such 
cases  as  this  rests,  and  upon  which  the  determination  of  the 
question  here  raised  depends. 

It  is  urged  by  counsel  for  the  defendant  that  the  pun- 
ishment prescribed  by  the  sixth  section  of  this  Act  is  a 
penalty,  that  the  proceeding  for  its  enforcement  is  crim- 
inal in  its  nature,  and  that  therefore  the  trial  of  the  cause 
is  to  be  governed  by  the  rules  of  evidence,  and  the  right 
to  have  a  review  in  an  appellate  court  is  to  be  determined 
by  the  law  applicable  to  a  criminal  prosecution.  It  may 
be  admitted  that  in  a  sense  the  punishment  prescribed  by 
the  Act  is  a  penalty.  But  penalties  are  of  different  sorts. 
They  may  consist  of  a  sum  of  money  which  the  offender 
shall  pay  in  atonement  for  his  forbidden  act,  in  other 
words,  of  a  fine,  or  shall  suffer  some  other  form  of  forfeit- 
ure of  property,  or  they  may  consist  of  the  infliction  of 
the  corporal  punishment  of  the  guilty  party,  or  they  may 


808  FEDERAL  SAFETY  APPLIANCE  ACT. 

consist  of  both  of  these  punishments.  The  public  through 
its  government  may  employ,  within  certain  limitations, 
such  of  these  various  forms  of  punishment  as  it  may  deem 
just  and  necessary  to  the  common  welfare.  Offenses  range 
in  respect  of  their  turpitude  from  the  smallest  to  the 
greatest ;  and  the  theory  of  punishment  is  that  it  shall 
be  measured  by  the  gravity  of  the  offense.  While  it  is  true 
that  the  constitution  and  laws  of  the  country  are  pre- 
scribed and  enforced  for  the  protection  of  property  as  well 
as  of  the  person,  yet  they  regard  with  greater  concern  the 
protection  of  the  latter.  And  so,  when  for  small  offenses 
a  pecuniary  punishment  is  prescribed  as  the  atonement,  it 
has  long  been  the  practice  to  employ  a  civil  action  for  its 
recovery.  Assuming  that  the  punishment  is  just,  the  con- 
sequences to  the  defendant  are  not  far  different  from  those 
which  happen  in  civil  actions,  only  it  is  the  government 
which  is  the  plaintiff.  The  consequences  of  the  judgment 
are  substantially  the  same  to  him  as  if  the  penalty  was 
bestowed  upon  a  private  party,  except  with  regard  to  the 
scintilla  of  interest  he  has  in  the  public  revenue.  If  the 
public  may,  for  a  sufficient  reason,  compel  the  defendant 
to  pay  a  fine,  it  is  of  little  importance  to  him  whether  the 
government  keeps  it  for  its  own  purposes  or  turns  it  over 
to  another  who  is  already  indemnified.  Mere  academic 
discussion  of  the  theory  of  the  practice  by  which  it  is  done 
does  not  interest  him.  Probably  in  all  the  systems  of  law  in 
the  State  and  Federal  governments,  there  are  instances 
where  to  civil  liabilities  there  are  attached  penalties,  there 
being  something  wanton  or  gross  or  otherwise  peculiar  to 
the  liability.  Yet  such  penalties  are  enforced  in  civil  actions. 
A  very  cogent,  not  to  say  persuasive,  argument  was  ad- 
dressed to  us.  founded  upon  the  prohibition  of  the  Con- 
stitution against  subjecting  a  person  to  be  twice  put  in 
jeopardy  for  the  same  offense.  It  is  urged  that  this  prohi- 
bition extends  to  a  review  of  the  trial  in  an  appellate 
court;  and,  further,  that  it  applies  not  only  to  prosecu- 
tions for  crimes,  but  to  prosecutions  for  misdemeanors  also. 


APPENDIX    G.  809 

And  we  must  suppose  that  it  is  thought  that  the  protection 
afforded  thereby  extends  as  well  to  artificial  as  to  private 
persons ;  for  the  defendant  here  is  a  corporation.  And  if  a 
private  person  maj^  invoke  it  in  a  case  when  only  the  for- 
feiture of  property  is  involved,  there  is  color  for  the  claim 
that  a  corporation  may  invoke  it  in  a  like  case.  This  seems 
to  us  to  be  pushing  the  doctrine  a  long  way  and  beyond  its 
hitherto  recognized  scope. 

We  held  in  United  States  v.  Baltimore  &  0.  S.  W.  R. 
R.  Co.,  159  Fed.  33,  38,  and  again  the  case  of  United 
States  v.  Louisville  S  Nashville  R.  Co.,  recently  decided, 
that  the  Government  was  entitled  to  prosecute  a  writ  of 
error  from  this  court  to  the  District  Court  to  review  the 
proceedings  in  an  action  of  debt  to  recover  a  pecuniary 
penalty  which  alone  was  the  punishment  prescribed.  To 
this  ruling  we  adhere.  The  result  is  that  the  motion  to 
dismiss  must  be  overruled. 

The  principal  questions  upon  the  merits  are  two,  and 
they  arise  upon  the  instructions  given  by  the  Court  to  the 
jury. 

1st.  Whether  on  the  trial  of  an  action  such  as  this, 
the  rule  of  the  criminal  law  that  the  evidence  must  satisfy 
the  jury  of  the  guilt  of  the  respondent  beyond  a  reason- 
able doubt,  applies. 

2nd.  Whether  the  judge  correctly  stated  the  law  to  the 
jury  when  he  said  (as  he  did  in  substance)  that  if  the  de- 
fendant equipped  the  ears  with  the  proper  appliances  as 
required  by  the  Act,  and  thereafter  exercised  the  utmost 
degree  of  care  and  diligence  in  the  discovery  and  correc- 
tion of  defects  therein,  which  could  be  expected  of  a  highly 
prudent  man  under  similar  circumstances,  it  would  have 
discharged  its  duty,  and  would  not  be  liable  to  the  penalty 
prescribed  by  the  statute. 

Respecting  the  first  of  these  questions,  we  have  little  to 
add  to  what  ^ve  said  in  United  States  v.  Baltimore  d;  0. 
S.  W.  R.  Co..  supra,  and  the  observations  already  made 
in  discussing  the  motion  to  dismiss  the  writ  of  error.  It  is 


810  FEDERAL  SAFETY  APPLIANCE  ACT. 

impossible  for  us  to  distinguish  this  case  upon  any  sub- 
stantial ground,  so  far  as  concerns  the  present  question, 
from  that  of  Zucker  v.  United  States,  161  U.  S.  475,  where 
on  the  trial  of  an  action  by  the  United  States  to  recover  the 
value  of  merchandise  forfeited  by  a  fraudulent  impor- 
tation, the  case  turned  upon  the  admissibility  of  certain 
evidence.  If  the  action  was  of  a  criminal  nature,  it  was 
inadmissible.  If  it  was  not,  it  should  have  been  received. 
The  question  was  much  discussed  by  Mr.  Justice  Harlan, 
and  the  result  was  that  the  Court  held  that  the  evidence 
should  have  been  received,  and  this  upon  the  ground  that 
it  was  not  a  criminal  proceeding. 

We  have  referred  to  instances  where,  in  the  enforce- 
ment of  civil  liabilities,  penalties  incurred  by  wrongful 
neglect  to  discharge  them  are  also  enforced;  and  yet  we 
are  not  aware  that  it  has  ever  been  supposed  that  the  rule 
of  the  criminal  law  respecting  the  degree  of  proof  was  to 
be  imported  into  the  trial  of  the  civil  action.  The  giving 
of  such  a  remedy  as  that  specified  by  the  sixth  section, 
without  any  restriction  or  condition,  imports  an  action  at 
law  with  the  customary  incidents  of  such  an  action.  Being 
a  remedy  which  does  not  touch  the  person,  there  is  no  such 
urgency  for  protecting  him  as  to  require  that  the  rules 
for  the  conduct  of  a  civil  suit  should  be  displaced,  and 
those  of  a  criminal  proceeding  be  taken  in.  We  think  the 
law  does  not  sanction  such  an  anomalous  compound  in 
legal  proceedings.  If,  indeed,  there  be  no  substantial  dis- 
tinction between  a  case  where  the  Government  retains  the  fine 
and  one  where  it  is  given  to  a  private  party  in  excess  of 
his  otherwise  legal  right,  there  are  decisions  in  point  which 
hold  that  where  the  suit  is  a  civil  action  for  a  penalty  the 
evidence  is  sufficient  if  it  preponderates,  and  need  not  be 
such  as  to  remove  all  reasonable  doubt. 

Roherge  v.  Burnham,  124  Mass.  277. 
O'Connell  v.  Leary,  145  Mass.  811. 
Louiwille  rf-  N.  R.  Co.  v.  7////,.  115  Ala.  334. 
Feojde  v.  Briggs,  47  Ilun.  (N.  Y.)  266. 


APPENDIX    G.  811 

We  are  therefore  of  the  opinion  that  the  court  erred  in 
its  instruction  to  the  jury  in  this  regard. 

As  the  judgment  must  be  reversed  for  the  error  above 
shown,  we  think  it  necessary  to  consider  and  dispose  of  the 
other  allegations  of  error  above  stated,  to  the  end  that  the 
court  below  may  not  be  vexed  with  the  same  questions^ 
which  as  seems  quite  certain,  will  arise  upon  the  new 
trial.  The  trial  of  so  many  causes  of  action  upon  one 
petition  creates  as  it  did  for  the  court  below  some  embar- 
rassment in  dealing  with  the  questions  which  arise  upon 
the  several  counts  of  the  petition.  Moreover,  upon  the  new 
trial  the  evidence  may  not  be  the  same  as  that  given  on  the 
first.  Evidence  of  new  facts  may  be  adduced,  which  as  we 
should  think,  would  be  desirable  in  order  to  make  proper 
conclusions  upon  the  merits  of  the  several  cases  included 
in  the  petition.  "We  shall  best  subserve  the  present  pur- 
pose, by  indicating  the  general  principles  by  which  in  our 
opinion  the  trial  should  be  governed  in  respect  to  the  sub- 
ject we  are  now  considering. 

The  instruction  given  to  the  jury  in  regard  to  the  meas- 
ure of  the  duty  imposed  upon  the  railroad  company  by  the 
provisions  of  the  Safety  Appliance  Act  was  in  the  main, 
but  not  altogether,  substantially  in  accord  with  the  con- 
struction which  we  gave  to  them  in  the  case  of  St.  Louis  & 
S.  F.  R.  Co.  V.  Delk,  158  Fed.  931.  It  is  urged  however,  by 
counsel  for  the  Government  that  our  opinion  in  that  ease 
has  been  overruled  by  the  opinion  of  the  Supreme  Court 
in  the  case  of  St.  Louis  &  Iron  Mountain  By.  v.  Taylor, 
210  U.  S.  281.  If  this  seemed  to  us  with  certainty  to  be  so, 
we  should  of  course  be  bound  to  yield  our  own  opinion  to 
the  superior  authority  of  that  court.  But  if  the  judgment 
of  the  Supreme  Court  has  not  concluded  the  questions  now 
presented,  we  think  the  duty  incumbent  upon  this  court 
is  to  follow  its  own  decision  unless,  indeed,  it  should  become 
convinced  that  it  was  wrong.  Thereupon,  it  will  remain  for 
the  Supreme  Court  to  determine  whether  the  ruling  it  has 


812  FEDERAL  SAFETY  APPLIANCE  ACT. 

announced  is  to  be  extended  to  facts  such  as  those  of  the 
present  case. 

The  question  recurs  to  what  extent  is  a  judgment  of  a 
superior  court  of  controlling  authority?  We  do  not  al- 
lude to  that  respect  and  confidence  which  is  alwaj^s  due  to 
every  expression  of  opinion  of  the  superior  court  from  the 
subordinate  court,  but  to  those  declarations  of  essential 
import  resting  upon  the  facts  and  leading  to  the  conclusion 
manifested  by  the  judgment.  Declarations  of  law  bearing 
upon  the  issues  and  indicating  the  proper  judgment  there- 
on are  binding.  The  facts  and  law  of  the  instant  case 
only  are  in  the  eye  and  thought  of  the  court.  But  expres- 
sions of  opinion  as  to  how  the  law  would  be  upon  facts  es- 
sentially different  from  those  in  issue  are  not  controlling 
in  another  case  when  such  different  facts  and  issues  are 
presented.  These  rules  have  been  declared  on  many  occa- 
sions by  the  Supreme  Court  itself,  and  no  appellate  tribu- 
nal has  more  strongly  emphasized  them. 

Cohens  v.  Virginia,  6  Wheat.  264,  399. 
Northern  Bank  v.  Porter  tp.,  110  U.  S.  608. 
Plumley  v.  Massachusetts,  155  U.  S.  461,  471,  474. 
Hans  V.  Louisiana,  134  U.  S.  1. 

United  States  v.  Wong  Kim  Ark.,  169  U.  S.  649.  679. 
Harriman  v.  Northern  Securities  Co.,  197  U.  S.  244. 
Downes  v.  Bidwell,  182  U.  S.  258. 

In  the  case  of  St.  Louis  dr.  By.  Co.  v.  Taylor,  supra, 
the  suit  was  an  action  to  recover  damages  for  a  personal 
injury,  and  not  a  penal  action  such  as  provided  by  Sec- 
tion 6.  It  was  found  upon  the  provisions  of  those  sec- 
tions of  the  act  which  relate  to  the  subject  of  equipping 
the  cars  and  was  not  a  prosecution  for  the  use  of  such  cars. 
Besides  it  appeared  in  Taylor's  case  that  only  one  of  the 
meeting  ends  of  the  cars  whieh  came  into  the  eollision 
whereby  he  was  killed,  was  equipped  with  an  automatic 
coupler,  and  tbat  tbe  end  of  the  draw-bar  on  the  other  car 
was  not  so  equipped  but  had  the  old  style  of  link  and  pin 


APPENDIX    G.  813 

coupling.  This  latter  fact  was  a  plain  violation  of  the  law 
which  necessarily  meant  that  both  the  meeting  ends  should 
be  equipped  with  the  automatic  coupling;  otherwise  there 
would  be  no  coupling  which  would  be  automatic. 

We  gather  from  the  facts  stated  in  the  opinion  in  the 
Taylor  case  that  the  defect  in  the  couplings  of  cars  existed 
when  the  cars  started  on  their  journey,  and  that  plates  of 
metal,  called  "shims,"  were  provided  for  temporarily 
remedying  the  inequality  in  the  height  of  the  draw-bars. 
If  that  was  so,  the  railroad  company  was  chargeable  with 
notice  of  the  defective  condition  of  the  draw-bars  when  the 
cars  were  sent  out  and  was  at  fault  in  not  putting  them  in 
order,  and  did  not  relieve  itself  by  trusting  to  its  em- 
ployes the  making  of  the  temporary  makeshifts. 

Whether  the  Supreme  Court  would  apply  the  rule  laid 
down  in  the  Taylor  case  to  an  action  brought  by  the  Gov- 
ernment for  a  penalty  under  section  6  of  the  act  we  do 
not  know.  While  we  have  held  that  in  giving  an  action 
of  debt  to  recover  a  penalty,  the  implication  is  that  the 
procedure,  the  pleading,  the  evidence,  and  the  review  of 
the  proceedings  are  to  be  such  as  are  incident  to  an  action 
of  debt,  a  question  of  much  importance  remains  which  is 
whether  the  offense  being  penal,  the  court  is  not  to  have 
regard  to  the  constituents  of  the  offense  itself,  and  deter- 
mine its  quality  by  the  tests  of  the  criminal  law.  In  other 
words,  does  the  mere  fact  that  the  remedy  is  a  civil  action 
relieve  the  Grovernment  from  proving  that  the  offense 
charged  was  criminal  in  its  nature  and,  specifically,  was 
committed  in  willful  neglect  of  the  duty  prescribed  by  law? 
The  distinction  between  a  remedy  and  the  cause  of  action 
is  clear  enough,  but  the  answer,  notwithstanding  anything 
decided  in  Taylor's  case,  is  doubtful.  Though  involved  in 
the  case  before  us,  the  question  has  not  been  raised  or  dis- 
cussed. We  incline  to  think  it  should  be  answered  in  the 
negative,  but  we  do  not  decide  it. 

This  case  was  tried  before  the  decision  of  the  Delk  ease. 
But  the  opinion  of  the  court  as  expressed  in  its  instruc- 


814  FEDERAL  SAFETY  APPLIANCE  ACT. 

tions   to   the    jury,    in    most   respects,    proceeded    along   the 
lines  of  our  opinion  in  the  case  alluded  to.     In  this  latter 
ca^e  the  facts  were  that  the  car,  on  which  were  the  defec- 
tive couplings,  had  been  sent  back  by  the  Belt  Line  because 
of  the  defect.     It  had  been  on  the  dead  track  in  the  yard 
to  await  repairs,  which  had  been  sent  for.  and  was  in  the 
midst  of  other  cars.     It  became  necessary  to  move  the  defec- 
tive car  along  the  track  in  order  to  release  and  get  out  the 
other  cars.     It  was  during  this  operation  that  the  plaintiff 
was  hurt.     There  was  evidence  from  which  the  .iury  might 
have   found  that  the  first  knowledge  which   the   defendant 
had  of  the  defect   in  the   coupler   was   when   the    ear  was 
sent  back  to  it  and  it  put  the  car  on  the  "dead  track"  for 
repairs,  and  that  it  had  done  nothing  toward  actually  pro- 
moting the  transit   of  the   car  toward   its   destination.      It 
was  for  the  time  being  "tied  up"  for  repairs.     Still,  as  the 
majority  of  the  court  held,  it  was  nevertheless  engaged  in 
interstate   commerce,   its   freight   not   having  yet   been   dis- 
charged.    What  we  said  in  our  opinion  had  reference  to  a 
ease  so  circumstanced.    We  were  not  engaged  in  laying  down 
universal  rules    upon    the    general    subject,    but    only    such 
as  we  conceived  to  be  applicable  to  the  facts  of  the  ease 
then    before   us.      In    effect   we   concluded   that   if   the   de- 
fect had   occurred   at  some  previous  time   and  the  defend- 
ant had  knowledge   of  it,  or  should,  with  reasonable  dili- 
gence, have  had  notice  of  it.  and  with  such  Imowledge,  act- 
ual   or   implied,    continued    without    some   justifying   neces- 
sity, to  haul  the  ear  upon  its  tracks  while  laden  with  goods 
which  were  the  subject  of  interstate  traffic,  it  would  there- 
by violate  the  statute.    We  still  concede  that  to  be  so.     We 
tbink,    further  that  the  railroad   company  would  be  liable 
if  it  starts  in  transit  a  ear  with  a  coupling  containing  a 
defect    which    could    have    been    discovered    by   inspection; 
and   vicr  vrrfia,   if   a   car  when   started   in   transit  had   no 
discoverable    defect,    the    railroad    company   would    not    be 
liable  to  the  penalty  for  n  use  of  the  ear  in  the  same  tran- 
sit by   reason   of   a   defect   occurring   during   transit,    pro- 


APPENDIX    G.  815 

vided  there  has  been  no  subsequent  lack  of  diligence  either 
in  discovering  or  in  repairing  the  defect. 

We  are  of  the  opinion  that  when  the  Government  has 
proved  that  a  car  laden  for  interstate  traffic  and  with  de- 
fective couplings,  has  been  hauled  upon  its  tracks,  the 
railroad  company  is  bound  to  prove  exculpatory  facts, 
such  as  that  it  has  used  all  reasonably  possible  endeavor 
to  perform  its  duty  to  discover  and  correct  the  fault. 
We  think,  for  example,  that  the  court  was  in  error  in  charg- 
ing- the  jury  that  in  the  case  of  the  cars  coming 
from  Mound  City  the  jury  might  indulge  the  presumption 
that  the  appliances  of  the  cars  were  in  proper  condition 
when  they  started,  and  that  they  remained  so  until  such 
time  as  they  were  shown  to  be  otherwise.  We  think  the 
burden  of  proof  was  on  the  other  party. 

With  regard  to  the  sufficiency  of  the  proof  in  view  of 
the  fact  that  the  action  is  a  civil- action  and  is  for  a  penalty, 
we  have  already  expressed  our  opinion. 

Now,  as  an  original  proposition  we  are  unable  to  under- 
stand why  it  was,  if  Congress  intended  to  enact  such  a  law 
as  it  is  now  contended  this  law  is,  it  should,  after  having 
proposed  to  itself  the  enacting  a  law  "to  promote  the  safety 
of  employes  and  travelers  upon  railroads  by  compelling 
common  carriers  engaged  in  interstate  commerce  to  equip 
their  cars  with  automatic  couplers"  and  having  used  fitting 
language  to  carry  that  purpose  into  effect  and  nothing 
more,  have  failed  to  declare  that  having  so  equipped  its 
cars  with  the  couplings,  the  carrier  should  be  required  at 
all  times  and  in  all  circumstances  when  in  use  to  have 
them  in  effective  condition.  To  hold  that  CongresiS  has 
done  this,  is  to  insert  an  interpolation  into  the  act,  and  to 
make  this  interpolation  such  as  shall  require  things  con- 
fessedly impossible  and  to  be  apologized  for  by  saying  as 
counsel  for  the  Government  insist  that  we  should,  the  law 
is  so  written,  that  it  is  a  matter  for  the  legislature,  and  not 
for  the  courts  to  determine.  Is  this  a  proceeding  to  be 
justified  in  order  to  make  the  statute  mean  what  the  coun- 


816  FEDERAL  SAFETY  APPLIANCE  ACT. 

sel  think  the  law  ought  to  be?  It  seems  clear  to  us  that 
Congress  having  accomplished  its  purpose  by  requiring 
carriers  to  equip  their  cars  in  the  manner  prescribed  and  to 
continue  such  equipment,  was  content  to  leave  the  inci- 
dents of  their  use  to  be  regulated  by  the  rules  and  principles 
of  the  common  law. 

Generally,  the  accepted  rule  is  that  if  a  given  construc- 
tion of  a  law  leads  to  such  results  that  it  seems  harsh,  un- 
reasonable or  to  be  performed  with  a  great  excess  of  diffi- 
culty, the  court  on  seeing  such  a  prospect  will  turn  back 
to  see  if  a  construction  is  possible  whereby  such  conse- 
quences can  be  avoided  and  another  construction  imposed 
having  a  more  reasonable  result.  Such  an  act,  we  think, 
ought  not  to  be  so  construed  as  to  imply  the  intention  to 
impose  these  consequences,  unless  its  provisions  are  such  as 
to  render  the  construction  inevitable.  A  time  honored 
rule  for  the  interpretation  of  statutes  forbids  it.  Said  Mr. 
Justice  Field  in  delivering  the  opinion  of  the  Supreme 
Court  in  United  States  v.  Eirhy,  7  Wal.,  482;  "All  laws 
should  receive  a  sensible  construction.  General  terms 
should  be  so  limited  in  their  application  as  not  to  lead  to 
injustice,  oppression,  or  an  absurd  consequence.  It  will 
always,  therefore,  be  presumed  that  the  legislation  in- 
tended exceptions  to  its  language,  which  would  avoid  re- 
sults of  this  character.  The  reason  of  the  law  in  such 
cases  should  prevail  over  its  letter."  This  statement  has 
been  repeated  by  that  court  in  numerous  cases  since  that 
time;  the  latest  being  perhaps  that  of  Jacohson  v. 
Massachusetts,  197  U.  S.  11.  It  is  the  opposite  of  this 
to  recognize  a  hardship,  an  injustice,  and  then  to 
fortify  the  way  to  it  by  adopting  the  fatalistic  answer, 
"thus  saith  the  law."  And  it  is,  indeed,  worse  than  this 
if  the  law  does  not  say  it  at  all.  It  is  to  assume  the  con- 
clusion, and  then  mould  the  premises  so  that  they  may 
justify  the  conclusion.  Accidents  will  happen,  and  at 
places  more  or  less  remote  from  places  of  repair,  or  where 
the  car  cannot  be  left  upon  the  track  without  peril  to  the 


APPENDIX    G.  817 

public  as  well  as  to  the  employes.  Undiscoverable  defects 
may  at  any  time  appear  while  the  car  is  moving  on  the 
track  in  a  train,  and  it  has  been  hauled  in  that  condition 
before  it  can  be  known.  We  are  not  prepared  to  believe 
that  Congress  intended  to  impose  a  law  upon  a  business  of 
public  utility  which  cannot  be  carried  on  without  more  or 
less  frequent  violations  of  such  law,  and  to  fasten  thereon 
a  liability  to  prosecution  as  for  a  crime  or  misdemeanor? 

Among  the  Fundamental  Legal  Principles,  Broom  in 
his  Legal  Maxims,  238,  classes  the  maxim.  Lex  non  cogit 
ad  impossibilia,  a  rule  of  law  which  applies  to  statutes  of 
the  most  positive  character,  statutes  which  cannot  by  any 
rule  of  construction  be  so  interpreted  as  to  prevent  the  cer- 
tainty of  the  result.  And  in  his  commentary  upon  it  he  says ; 
"The  law  in  its  most  positive  and  peremptory  injunctions, 
is  understood  to  disclaim,  as  it  does  in  its  general  aphorisms, 
all  intention  of  compelling  to  impossibilities,  and  the  admin- 
istration of  laws  must  adopt  that  general  exception  in  the 
consideration  of  all  particular  cases." 

While  this  maxim  is  not  uniformly  applicable,  as  for 
instance  when  the  statute  relates  to  a  dangerous  business 
and  gives  a  private  remedy,  we  think  it  is  a  proper  one 
to  apply  in  the  construction  of  a  law  inflicting  a  penalty, 
and  the  business  to  which  it  relates  is  not  itself  unlawful. 

It  was  upon  the  application  of  this  maxim  that  the 
case  of  Chew  Heong  v.  United  States,  112  U.  S.  536.  was 
decided.  The  Chinese  Exclusion  Acts  of  1882  and  1884 
forbid  the  re-entry  of  a  Chinese  laborer  without  the  pro- 
duction of  the  collector's  certificate  which  by  these  Acts  he 
should  obtain  on  leaving  the  United  States. 

But  he  had  left  prior  to  the  date  of  the  Acts,  and  so  of 
course  could  not  have  obtained  the  certificate.  By  the 
treaty  with  China  of  1880,  being  resident  here  he  was 
entitled  to  go  abroad  and  return  without  hindrance  or 
condition.  Congress,  however,  had  the  power  to  pass  laws 
in  derogation  of  the  treaty.  But  although  the  denial  of  the 
right  to  return  without  the  certificate  was  peremptory,  the 


818  FEDERAL  SAPETY  APPLIANCE  ACT. 

court  held  that  in  this,  the  Act  required  an  impossibility, 
and  for  the  purpose  of  saving  the  right  given  by  the  treaty, 
it  was  to  be  presumed  that  Congress  did  not  intend  its  pro- 
hibition to  be  absolute,  and  that  the  Statutes  should  be  so 
construed  as  to  avoid  an  unreasonable  or  unjust  result. 

On  the  argument,  counsel  for  the  Government  when 
asked  what  language  of  the  ael  created  the  absolute  duty 
contended  for.  referred  to  the  last  clause  in  Section  2 
M^hieh  is.  "and  which  can  be  uncoupled  without  the  neces- 
sity of  men  going  between  the  ends  of  cars,"  as  if  that 
language  constituted  an  independent  requirement.  But 
this  language  is  descriptive  of  the  equipment  required,  and 
imports  nothing  in  regard  to  the  duty  of  the  carrier  when 
from  accident  or  some  other  cause  without  his  fault,  the 
equipment  becomes  deranged.  And  because  the  statute 
does  not  make  any  command  in  that  regard,  the  general 
law  supplements  the  duty  of  the  carrier  by  declaring  that 
he  shall  use  the  utmost  diligence  in  having  the  defect  cor- 
rected. By  this  harmonious  cooperation  of  statute  and  com- 
mon laAV.  the  intended  result  is  worked  out  without  any  unjust 
result. 

The  court  is  not  at  this  time  made  up  of  the  same  mem- 
bers as  it  was  when  the  Delk  case  was  decided,  but  all  are 
a  (Treed  that  the  decision  was  right  as  applied  to  a  defect 
occurring  during  transit  and  that  so  applied  we  should 
abide  by  it  unless  it  shall  be  overruled  by  the  Supreme 
Court.  Still,  if  it  should  be  held  that  our  decision  in  the 
Delk  case  was  wrong,  it  does  not  necessarily  follow  that  in 
this  suit  for  a  penalty  the  court  below  was  also  wrong  in 
giving  the  instruction  complained  of. 

The  result  of  these  considerations  is  that  for  the  error 
in  the  instruction  regarding  the  sufficiency  and  cogency  of 
the  proof  required,  the  judgment  must  be  reversed  and  a  new 
trial  awarded. 


APPENDIX    G.  819 

UNITED  STATES  v.  WABASH  RAILROAD  COMPANY. 

(United  States  District  Court,  Southern  District  of  Illinois.) 

[Affirmed,  168  Fed.  1.] 

June  6,  1907. 

1.  The  Safety  Appliance  Act  requires  that  each  coupler  on  a  car  be 
operative  in  itself,  so  that  an  employee  will  not  have  to  go  to 
another  car  to  uncouple  the  car  in  question. 

William  A.  Northcott,  United  States  Attorney,  Henry  A. 
Converse,  assistant  United  States  attorney,  and  Luther  M. 
Walter,  for  the  United  States. 

McAnulty  &  Allen,  for  the  defendant. 

Humphrey,  District  Judge  (charging  jury)  : 

The  case  you  are  considering  is  a  suit  brought  by  the  Gov- 
ernment of  the  United  States  against  the  Wabash  Railroad 
Company  for  the  enforcement  of  a  penalty.  There  is  a  law 
of  Congress,  passed  several  years  ago,  and  amended  in  some 
instances  since,  requiring  interstate  railroad  companies  to 
equip  their  cars  "with  certain  appliances  for  the  safety  of  train 
crews.  We  call  it  the  "Safety  Appliance  Act."  And  the 
same  Act  fixes  a  penalty  for  every  violation  of  that  statute, 
for  every  failure  of  the  railroad  company  to  comply  vdth  the 
statute,  for  every  instance  of  taking  into  its  service  and  using 
cars  not  so  equipped,  or  having  such  equipment  not  in  good 
operating  condition. 

During  the  progress  of  this  case,  as  the  witnesses  have 
testified,  you  have  learned  what  these  various  appliances  are. 
Air  brakes  upon  at  least  75  per  cent,  of  the  cars  in  a  train, 
so  connected  that  such  cars  so  equipped  would  be  under  the 
control  of  the  engineer;  couplers  equipped  in  such  a  way 
that,  by  a  device  handled  from  the  side  of  the  car,  cars  can 
be  coupled  or  uncoupled  with  cars  to  which  they  may  be 
attached  in  the  train  without  the  necessity  of  a  member  of 
the  train  crew  going  between  the  ends  of  the  two  cars. 


820  FEDERAL  SAFETY  APPLIANCE  ACT. 

This  declaration  has  seventeen  counts — a  separate  count 
for  each  alleged  violation.  Some  of  these  counts  charge  upon 
insufficient  air  brakes ;  others  charge  upon  lack  of  grab-irons 
or  defective  grab-irons ;  others  charge  upon  defective  couplers 
and  coupling  devices. 

You  will  have  the  declaration  with  you,  and  the  evidence 
has  made  you  familiar  with  what  I  mean  when  I  refer  in  this 
casual  way  to  these  various  devices. 

Now  the  Government  will  be  entitled  to  a  verdict  of  guilty 
in  this  case  as  to  those  counts  in  which  it  has  proven  by  a 
preponderance  of  the  evidence  that  the  cars  were  in  use  at 
the  time  in  question  in  violation  of  the  statute.  There  is  no 
dispute,  I  think,  sho\\-n  by  this  record  as  to  the  fact  that  all 
these  cars  and  trains  counted  upon  were  in  interstate  busi- 
ness, so  that  the  issue  you  are  trying  upon  each  count  is  an 
ifsue  of  fact  pure  and  simple,  w^hether  the  cars  so  in  use,  or 
the  trains  so  in  use,  were  being  used  in  violation  of  these  statu- 
tory requirements. 

And,  if  you  find  from  the  evidence,  from  a  preponderance 
of  the  evidence  upon  any  one  of  these  counts,  that  there  was  a 
violation  of  the  statute  as  charged  in  such  count,  then  as  to 
such  count  you  will  find  the  defendant  guilty. 

On  the  other  hand,  if  you  find  as  to  any  one  of  these  counts 
that  there  was  no  violation  of  the  requirement  of  the  statute 
as  to  such  particular  count,  find  this  from  a  preponderance 
of  the  evidence,  then  as  to  such  count  or  counts  you  will  find 
the  defendant  not  guilty. 

You  will  have  nothing  to  do  with  the  punishment  in  the 
ease.  Congress  has  fixed  that  specifically  in  the  Act  itself, 
and  the  court  will  enforce  the  punishment  upon  your  verdict 
of  guilty  or  not  guilty,  as  to  each  count. 

In  making  up  your  minds  upon  the  evidence,  the  court 
further  charges  j^ou  that  by  a  preponderance  of  the  evidence 
I  mean  the  greater  weight  of  the  evidence,  the  convincing 
power  of  the  evidence ;  not  the  number  of  witnesses,  not  any- 
thing else  except  that  indescribable  something  which  con- 
vinces a  man  of  the  truth  of  a  fact,  that  gives  weight  to 


APPENDIX    G.  821 

evidence.  In  considering  these  witnesses  who  have  testified, 
you  have  a  right  to  consider  all  that  you  have  seen  and  all 
that  you  have  heard  as  coming  from  the  witnesses,  their 
manner  and  appearance  upon  the  stand,  their  frankness  and 
honesty,  or  the  lack  of  it,  their  interest  in  the  case,  if  any  has 
been  shown,  or  their  prejudices,  if  any  have  been  shown,  the 
reasonableness  or  unreasonableness  of  the  story  they  have  told, 
and  whether  they  have  contradicted  themselves  or  been  con- 
tradicted by  other  reliable  testimony  in  the  case.  All  these 
considerations  you  have  a  right  to  weigh  in  making  up  your 
judgment  as  to  the  weight  to  be  given  to  the  testimony  of 
any  witness,  but  in  doing  this  you  will  not  give  either  more 
or  less  weight  to  tlie  testimony  of  any  witness  because  of  the 
fact  that  such  witness  testifies  on  behalf  of  the  Government, 
or  because  of  the  fact  that  such  witness  is  an  employee  of 
the  railroad  company,  but  you  Avill  give  to  the  testimony  of 
each  witness  that  degree  of  weight  which,  in  your  judgment, 
it  is  entitled  to,  from  all  facts  and  circumstances  in  the  case. 
The  statute  concerning  the  coupling  devices  requires  that 
the  automatic  coupler  in  use  must  be  operative  for  each  car 
as  to  the  device  of  that  particular  car,  so  that  an  employee 
of  a  railroad  company  would  not  have  to  go  to  another  car  to 
make  the  uncoupling  of  the  car  in  question.  The  jury  \\dll 
take  that  into  consideration  in  connection  wdth  the  other  evi- 
dence in  the  case.   *   *   * 


UNITED  STATES  v.  BELT  RAILWAY  COMPANY  OF 

CHICAGO. 

(United   States  District   Court,   Northern   District   of   Illinois,    Eastern 

Division.) 

[Affirmed,  168  Fed.  542.] 

January  23,  1908. 

(Syllabus  by  the  court.) 

1.  An  intrastate  belt  railroad  which  accepts  for  transfer  between  dif- 
ferent trunk  lines  cars  loaded  with  interstate  traffic  is  subject  to 
the  Safety  Appliance  Act  even  though  its  rails  lie  wholly  within 
the  confines  of  a  single  State. 


822  FEDERAL  SAFETY  APPLIANCE  ACT. 

2.  Interstate  commerce  begins  as  soon  as  an  article  starts  to  move 
from  one  State  to  another,  and  every  carrier  conveying  it  is 
engaged  in  moving  interstate  commerce. 

Edwin  W.  Sims,  United  States  attorney,  Harry  A.  Paekin, 
assistant  United  States  attorney,  and  Luther  M.  Walter, 
special  assistant  United  States  attorney,  for  the  United  States. 

"William  J.  Henley  and  William  L.  Reed,  for  the  de- 
fendant. 

Landis,  District  Judge  (charging  jury)  : 

This  is  a  suit  by  the  United  States  against  the  Belt  Railway 
of  Chicago  for  the  recovery  of  a  penalty  of  $100  for  the 
movement  of  a  train  made  up  of  43  freight  cars,  of  which 
less  than  75  per  cent,  had  their  brakes  used  and  operated  by 
the  engineer  of  the  locomotive  drawing  the  train.  The  Act 
of  Congress  controlling  this  situation  provides  that  every 
common  carrier  engaged  in  interstate  commerce  shall  have 
not  less  than  50  per  cent,  of  the  cars  composing  a  train 
equipped  with  brakes  so  as  to  be  operated  by  the  engineer 
of  the  locomotive  drawing  the  train.  The  Act  also  author- 
izes the  Interstate  Commerce  Commission  to  increase  the 
minimum  percentage  of  cars  in  any  train  required  to  be  so 
operated,  and  provides  that  failure  to  comply  v;ith  such  re- 
quirement shall  be  subject  to  penalty. 

Prior  to  the  date  on  which  the  movement  under  inquiry 
in  this  proceeding  took  place,  the  Commission,  in  the  exercise 
of  this  authority,  had  taken  such  action  that  on  the  day 
this  movement  took  place  it  was  the  duty  of  the  defendant, 
in  the  operation  of  its  train,  to  use  power  or  tram  brakes  on 
not  less  than  75  per  cent,  of  the  ears  composing  the  train. 

It  appears  in  evidence  that  the  defendant 's  train  was  made 
up  of  43  freight  cars,  including  C,  R.  I.  &  P.  ear  85176  and 
an  engine  and  caboose,  and  that  the  car  mentioned  contained 
lumber  under  shipment  from  a  point  in  Illinois  to  a  point 
in  Wisconsin;  it  also  appears  that  power  or  train  brakes 
were  used  on  but  15  cars  composing  this  train,  and  that  on 


APPENDIX   G.  823 

the  remainder  of  the  ears  being  the  difference  between  15  and 
43,  the  power  or  train  brake  was  not  used. 

The  question,  therefore,  presented  is  whether  the  Belt 
Railway  Company,  at  the  time  of  the  movement  of  the  train, 
was  engaged  in  interstate  commerce;  and  on  this  point  I 
charge  you  that  when  a  commodity  originating  at  a  point  in 
one  State,  destined  to  a  point  in  another  State,  is  put  aboard 
a  car,  and  that  car  begins  to  move,  interstate  commerce  has 
begun,  and  that  interstate  commerce  it  continues  to  be  until 
it  reaches  its  destination.  If,  therefore,  between  the  point  of 
origin  of  tliis  shipment  and  the  point  of  destination,  the  car 
in  which  it  is  being  vehicled  passes  over  a  line  of  track  wholly 
within  a  city,  within  a  county,  within  a  state,  the  railway 
company  operating  that  line  of  track  while  moving  such  car 
is  engaged  in  interstate  commerce. 

So,  applying  this  rule  of  law,  if  it  has  been  shown  to  you 
that  on  the  occasion  named  the  Belt  Railway  Company  was 
engaged  in  interstate  commerce,  and  while  so  engaged  moved 
a  train  of  which  less  than  75  per  cent,  of  the  cars  were 
equipped  and  operated  with  power  or  train  brakes  from  the 
engine,  you  will  find  in  favor  of  the  United  States.  If,  on 
the  contrary,  it  has  not  been  so  shown,  your  verdict  wiU  be 
for  the  defendant. 


UNITED  STATES  v.  PHILADELPHIA  &  READING 
RAILWAY  COMPANY. 

(United  States  District  Court,  Eastern  District  of  Pennsylvania.) 

Marcli  17,  1908. 

[For  opinion  denying  new  trial,  see  162  Fed.  Rep.,  403.] 

1.  An  action  brought  to  recover  the  penalty  provided  for  in  the  Safety 

Appliance  Act  is  not  a  criminal  case. 

2.  The  Government  need  not  prove  its  case  beyond  a  reasonable  doubt; 

it  is  sufficient  if  it  furnishes  clear  and  satisfactory  evidence  of  ail 
the  necessary  facts. 

3.  The  statute  requires  as  to  couplers  that  the  apparatus  on  each  end 

of  every  car  shall  be  in  operative  condition. 


824  FEDERAL  SAFETY  APPLIANCE  ACT. 

4.  In  order  to  constitute  a  violation  of  the  Safety  Appliance  Act  the 

car  must  be  moved  in  a  defective  condition. 

5.  ^Yhere  a  car  which  had  been  at  rest  at  a  station  for  a  period  of  time 

i3  taken  out  upon  the  road  in  a  defective  condition  the  carrier  is 
liable  for  tlie  penalty,  and  it  is  wholly  immaterial  whether  the 
defendant  knew  of  the  defect  or  could  have  ascertained  its  condition 
by  the  exercise  of  reasonable  care;  in  such  a  case  the  carrier  must 
find  tlie  defect  at  its  peril. 

J.  Whitaker  Thompson,  United  States  attorney,  John  C. 
SwARTi,EY,  assistant  United  States  attorney,  and  Luther  M. 
"Walter,  special  assistant  United  States  attorney,  for  the 
United  States, 

James  F.  Campbell,  for  the  defendant. 

McPherson,  District  Judge  (charging  jury)  : 

Gentlemen  of  the  jury:  It  is  possible  that  you  may  have 
heard  the  instructions  that  I  gave  to  the  jury  that  just  went 
out,  but  it  is  my  duty  to  repeat  them  briefly  to  you  with 
regard  to  this  case.  Practically  the  same  questions  are  in- 
volved, and  another  question  also  with  which  you  need  not 
be  troubled. 

Of  course,  the  defendant,  as  is  conceded,  is  an  interstate 
common  carrier ;  that  is,  it  is  engaged  in  the  business  of  carry- 
ing commerce  between  States,  between  one  state  and  another, 
and,  therefore,  that  business  is  within  the  power  of  Congress 
to  regulate.  This  particular  car,  as  has  been  agreed  upon, 
originated  at  a  point  in  the  state,  and  its  journey  terminated 
at  another  point  within  the  state. 

Under  certain  circumstances  there  Avould  be  no  question 
whatever  that  it  was  beyond  the  power  of  Congress  to  regu- 
late it  in  any  way,  because,  as  you  know,  and  I  may  say 
briefly,  the  power  of  the  State  over  business  thr.t  is  entirely 
transacted  within  its  borders  is  exclusive.  Congress  has  no 
power  over  it.  It  is  only  commerce  that  goes  from  one  State 
to  another,  interstate  commerce  so-called,  that  Congress  has 
a  right  to  regulate.  But  there  is  a  legal  question  here  based 
upon  uncontroverted  evidence  that  will  be  for  the  court  to 


APPENDIX    G.  825 

determine  later,  and  for  the  present,  therefore,  we  shall  treat 
this  ease  as  if  it  were  within  the  power  of  Congress  to  regu- 
late, and  as  if  this  car  was  engaged  in  interstate  traffic.  So 
you  will  understand  that  you  may  assume  that  to  be  the 
case.  Therefore,  if  there  were  nothing  else  in  the  case  and 
you  should  find  that  this  car  was  out  of  order  and  that  the 
Act  had  been  violated,  it  would  be  your  duty  to  find  in  favor 
of  the  Government  for  the  penalty  which  is  denounced  by  the 
Act  of  Congress. 

The  only  question  of  fact,  therefore,  that  will  be  for  you 
to  determine  is  whether  or  not  this  car  was  out  of  order  and 
whether  these  appliances  which  have  been  made  necessary  by 
the  Act  of  Congress  were  in  operative  condition,  because  if 
they  were  not,  if  this  car  would  not  couple  automatically  by 
impact,  or  if  it  could  not  be  uncoupled  unless  somebodj''  went 
between  the  cars  in  order  to  uncouple  it,  then  it  would  be 
out  of  operative  order  and  the  Act  of  Congress  would  not 
be  violated.  Whether  or  not  the  company  inspected  this  car, 
were  diligent  and  careful  in  inspecting  it,  is  not  a  matter  that 
you  need  concern  yourselves  about.  As  I  regard  the  statute, 
the  Act  requires  these  defects  to  be  found  at  the  peril  of  the 
company,  and  if  they  fail  to  find  them,  then  they  are  respon- 
sible for  the  penalty,  even  thoagh  they  may  have  honestly 
done  all  in  their  power  to  do.  If  there  is  carelessness  and 
negligence,  of  course  they  would  be  responsible,  but  even  if 
they  put  careful  men  on,  and  careful  men  had  done  their 
work  as  well  as  they  knew  how ;  nevertheless,  if  through  some 
oversight — which  even  the  most  careful  men  are  liable  to 
commit — this  defect  was  not  discovered,  then  the  company 
would  be  responsible. 

But  the  question  of  fact  here  is  whether  or  not  this  defect 
existed,  and  that  contention  is  raised  here  by  the  defendant. 
The  allegation  is,  and  they  have  produced  evidence  bearing 
upon  that  question,  that  this  defect  did  not  exist  upon  this 
particular  car,  and  you  must  resolve  that  question  according 
to  the  evidence.  That  is,  the  inspectors  may  have  been  mis- 
taken ;  they  may  have  found  a  defect,  but  not  upon  this  par- 


826  FEDERAL  SAFETY  APPLIANCE  ACT. 

ticular  car,  and,  as  the  Government  put  its  case  upon  this 
particular  car  being  out  of  order,  of  course  it  is  bound  by 
that  allegation,  and,  although  some  other  car  may  have  been 
out  of  order,  unless  it  was  this  one,  of  course,  the  Government 
cannot  succeed. 

There  is  only  this  else  to  be  said:  This  is  not  a  criminal 
case.  While  it  is  a  suit  for  a  penalty,  it  is  not  a  criminal 
case.  The  suit  here  is  not  brought  upon  an  indictment  found 
by  the  grand  jury.  It  is  brought  as  civil  suits  are  ordinarily 
brought,  by  the  filing  of  a  statement  of  claim  on  behalf  of 
the  Government,  and  the  suit  here  is  to  recover  a  verdict  of 
$100,  and  not  to  punish  the  defendant  by  a  fine  or  imprison- 
ment inflicted  upon  any  person.  That  being  so,  the  Govern- 
ment is  not  bound  to  make  out  its  ease  beyond  a  reasonable 
doubt — which  is  the  rule,  as  you  know,  which  is  to  be  applied 
in  criminal  cases — but  the  evidence  must,  since  this  is  a  penal 
case,  be  clear  and  satisfactory,  and  the  burden  of  proof  is 
upon  the  Government  throughout  the  case  to  make  out  all 
the  elements  which  go  to  establish  the  charge  before  it  is 
entitled  to  recover.  And  you  must  apply  those  rules  to  the 
evidence  that  has  been  laid  before  you. 

If  the  Government  has  not  made  out  its  case  by  clear  and 
satisfactory  evidence,  then  it  has  failed,  and  your  verdict 
ought  to  be  in  favor  of  the  defendant.  If  you  are  satisfied 
clearly  and  satisfactorily  that  this  defect  existed  upon  this 
car,  so  that  it  could  not  couple  automatically  by  impact,  or 
that  it  could  not  be  uncoupled  unless  somebody  went  between 
the  cars,  then,  as  a  matter  of  course,  the  ear  was  out  of 
order,  and  the  defendant  would  be  liable  for  the  penalty.  I 
should  add  this :  That  it  is  the  duty  of  the  companies  to  keep 
both  ends  of  these  cars  in  proper  order;  that  the  Act  is  not 
complied  with  unless  both  couplers  are  in  working  and  opera- 
tive condition.  It  is  not  enough  that  one  should  be  in  order — 
both  must  be  so  that  they  can  be  worked.  There  has  been 
evidence  here  that  under  certain  conditions,  although  one  of 
the  couplers  might  not  be  working,  still  if  the  car  that  is 
defectively  equipped  met  another  car  that  was  in  good  order, 


APPENDIX    G.  827 

the  process  of  coupling — of  automatically  coupling — might 
take  place,  but  even  then  the  cars  could  not  be  uncoupled 
under  certain  conditions  unless  a  brakeman  or  somebody 
went  between  the  cars  in  order  to  uncouple.  But  the  rule  is, 
and  I  instruct  you  that  that  is  the  meaning  of  the  statute, 
tliat  both  ends  of  each  car  must  have  the  coupler  in  proper 
operative  condition,  and  if  either  is  out  of  order  the  law  has 
been  disobeyed. 

There  is  only  one  charge  here,  and  therefore  your  verdict 
would  either  be  in  favor  of  the  Government  for  $100  or  in 
favor  of  the  defendant. 


UNITED  STATES  v.  BALTIMORE  &  OHIO  RAILROAD 

COMPANY. 

(United    States    District    Court,    Southern    District    of    Ohio,    Eastern 

Division.) 

June  10,  1909. 
(Syllabus  by  the  court.) 

1.  An  action  to  recover  a  penalty  under  the  Federal  Safety  Appliance 

Law  is  civil  in  its  nature,  not  criminal,  and  the  Government,  in 
order  to  obtain  a  verdict  in  its  favor,  must  satisfy  the  jury  by  a 
preponderance  of  the  evidence  that  the  facts  set  out  in  its  cause 
of  action  are  true. 

2.  A  carrier,  having  equipped  its  cars  with  couplers  and  grab-irons  re- 

quired by  statute,  is  not  absolutely  bound  to  insure  that  such 
appliances  are  constantly  in  good  order  and  workable  condition. 

3.  It  is  just  and  reasonable  that  a  carrier  should  exercise  a  high  degree 

of  care  to  keep  couplers  and  grab-irons  in  proper  condition,  but 
it  would  be  unjust  and  unreasonable  to  say  that,  having  fulfilled 
its  utmost  duty  in  that  regard,  it  should  be  held  responsible  for  a 
condition  which  might  occur  without  its  fault. 

4.  The   carrier's   duty   of  inspecting   its   cars   is   a  continuing  one,   and 

reasonable  care  requires  that  couplers  and  grab-irons  should  be 
inspected  at  reasonable  interA'als  of  time  by  skillful  and  competent 
inspectors.  The  carrier  is  bound  to  prove  that  it  uses  all  reasonably 
possible  endeavor  to  perform  its  duty  in  regard  to  discovering  and 
correcting  defects  in  its  safety  appliances. 
6.  If  a  carrier  engaged  in  interstate  commerce  moves  a  car  having  a 
defective  coupler  which  could  have  been  discovered  by  reasonable 
inspection,  then  it  would  be  liable  for  violation  of  the  Safety  Appli- 


828'  FEDERAL  SAFETY  APPLIANCE  ACT, 

ance  Acts;  but  if  the  carrier  uses  all  reasonably  possible  endeavor 
in  the  performance  of  its  duty  of  inspection  and  finds  no  defects, 
then  it  has  performed  its  duty  and  is  not  liable. 
G.  Positive  testimony  is  to  be  preferred  to  negative  testimony,  other 
things  being  equal;  but  what  may  be  negative  testimony  under 
one  state  of  facts  is  not  negative  under  another.  If  the  jury  finds 
it  was  the  duty  of  a  carrier's  inspectors  to  inspect  the  cars  and 
that  they  did  inspect  them,  but  did  not  see  any  defective  appliances, 
that  is  not  such  negative  testimony  as  not  to  receive  the  same 
consideration  as  the  positive  testimony  of  the  government  inspectors. 

Sherman  T.  McPherson,  United  States  attorney,  and 
Ulysses  Butler,  special  assistant  United  States  attorney,  for 
the  United  States. 

F.  A.  Durban,  R.  J.  King,  and  J.  M.  Lessick,  for  the  de- 
fendant. 

Sater,  District  Judge  (charging  jury)  : 

Gentlemen  of  the  jury,  there  is  a  section  of  the  law  which 
provides  that  it  shall  be  unlawful  for  any  common  carrier  to 
haul  or  permit  to  be  hauled  or  used  on  its  line  any  car  used 
in  moving  interstate  traffic  not  equipped  with  couplers 
coupling  automatically  by  impact,  and  which  can  be  un- 
coupled without  the  necessity  of  men  going  between  the  ends 
of  the  cars.  It  was  the  duty  of  the  defendant  as  a  common 
carrier  to  have  each  end  of  each  car  equipped  with  a  coupler 
of  the  Mnd  prescribed  by  statute.  The  first  cause  of  action 
charges  that,  in  violation  of  law,  on  the  14th  day  of  October, 
1907,  the  defendant  company  hauled  westerly  from  Holloway, 
Ohio,  over  its  line  of  railroad,  in  one  of  its  trains,  car  num- 
bered 57677,  loaded  with  interstate  traffic,  when  the  coupling 
and  uncoupling  apparatus  on  its  "A"  end  was  out  of  repair 
and  inoperative,  in  that  the  chain  connecting  the  lock  block 
or  lock  pin  to  tlic  uncoupling  lever  was  missing  on  that  end 
of  the  car,  in  conseciuence  of  which  it  was  necessary  for  train- 
men to  go  between  tlie  ends  of  the  cars  to  couple  or  uncouple 
them. 

There;  is  another  section  of  the  law  under  which  the  second 
cause  of  action  is  brought.    Tliat  section  provides  that  it  shall 


APPENDIX   G.  829 

be  unlawful  for  any  railroad  company  to  use  any  ear  in  inter- 
state commerce  that  is  not  x^rovided  with  secure  grab-irons 
or  handholds  in  the  ends  and  sides  of  each  car  for  the  greater 
security  of  the  men  in  coupling  and  uncoupling  cars.  The 
second  cause  of  action  charges  that  a  car  regularly  used  in 
interstate  traffic,  numbered  X-5110,  was,  on  the  same  day, 
hauled  westerly  from  Holloway,  Ohio,  by  the  defendant  com- 
pany in  a  train  containing  interstate  traffic,  while  there  was 
missing  from  the  right-hand  side  of  its  "A"  end  a  grab- 
iron  or  handhold,  and  when  such  end  was  not  provided  with 
secure  grab-irons  or  handholds,  and  that  such  car  was  in  that 
respect  defective.  Both  of  the  sections  to  which  your  atten- 
tion has  been  directed  were  designed  for  the  protection  of 
the  life  and  limbs  of  railway  employees  while  engaged  in  the 
work  of  interstate  transportation. 

The  defendant  denies  that  the  coupler  on  the  one  car  was 
defective  or  that  the  grab-iron  on  the  other  was  missing,  and 
that  it  hauled  either  of  such  cars  in  violation  of  law.  This 
is  a  general  denial  of  the  offenses  charged  in  the  amended 
petition. 

As  a  further,  and  what  I  shall  for  convenience  call  a  second, 
defense,  the  defendant  says  the  first-named  car  was  duly 
equipped  with  couplers  of  the  character  required,  and  the 
other  with  a  grab-iron;  that  at  all  times  after  such  cars  had 
been  so  equipped  it  had  exercised  due  and  reasonable  care  to 
keep  itself  informed  by  inspection  and  otherwise  as  to  the 
condition  of  each  of  such  devices  to  detect  any  defects  or  im- 
perfections in  them,  or  either  of  them,  and  to  keep  them  and 
each  of  them  in  proper  repair  and  working  order;  and  that 
mthin  a  reasonable  time  prior  to  the  movement  of  such  cars 
it  had  duly  inspected  the  device  in  question  on  each  and 
found  it  in  good  repair  and  working  order  and  free  from  any 
observable  defects,  and  did  not  know  at  the  date  mentioned 
or  have  cause  to  believe  that  such  devices,  or  either  of  them, 
were  out  of  repair  or  inoperative. 

The  action  is  civil,  not  criminal.  The  Government  must 
stand  on  the  case  stated  in  its  amended  petition.     To  obtain 


830  FEDERAL  SAFETY  APPLIANCE  ACT. 

a  verdict  in  its  favor  it  must  satisfy  you  by  a  preponderance 
of  the  evidence,  which  means  the  greater  weight  of  the  evi- 
dence, that  the  facts  set  out  in  its  respective  causes  of  action 
are  true.  A  failure  to  do  so  is  fatal  to  its  right  to  recover. 
There  being  two  causes  of  action,  you  may,  if  the  evidence 
justifies  it,  return  a  verdict  in  favor  of  the  Government  on 
one  of  them,  or  on  both  of  them,  or  on  neither  of  them. 

The  defendant  is  engaged  in  interstate  commerce,  which 
means  commerce  between  different  States  of  the  Union.  You 
must  determine  from  the  evidence  and  the  charge  of  the  court 
whether  or  not  the  cars  in  question,  or  either  of  them,  were 
used  in  interstate  commerce. 

It  is  necessary  for  the  Government  to  prove,  to  recover  on 
the  first  cause  of  action,  that  the  coupler  in  question  was 
defective  at  the  time  stated,  as  charged,  and  that  the  car  to 
which  it  was  attached  was  loaded  with  interstate  traffic,  and 
was  hauled,  as  alleged,  over  the  defendant 's  road.  To  recover 
on  the  second  cause  of  action  the  Government  must  show  that 
at  the  time  stated  the  grab-iron  mentioned  was  missing  and 
that  the  car  in  question  was  hauled  in  and  was  a  part  of  a 
train  that  was  used  in  and  contained  interstate  traffic.  It 
must,  to  recover  on  either  of  the  causes  of  action,  prove  all 
the  averments  therein  contained.  If  it  does  that,  it  is  entitled 
to  your  verdict,  unless  you  find  in  favor  of  the  defendant 
on  what  I  have  termed  its  further  or  second  defense  to  each 
of  its  respective  causes  of  action,  and  to  which  I  shall  direct 
your  attention  later.  The  Government  has  not  charged  and 
it  is  not  necessary  for  it  to  prove,  or  for  you  to  find,  that  the 
car  mentioned  in  the  second  cause  of  action  was  loaded  mth 
interstate  traffic,  but  the  Government,  to  recover,  must  prove 
that  the  car  was  hauled  in  and  was  part  of  a  train  which  was 
engaged  in  transporting  merchandise  or  freight  from  one 
State  to  another. 

It  is  conceded  that  the  defendant  company  liad  originally 
equipped  the  first-mentioned  car  with  a  coupler  of  the  kind 
required  by  statute  and  the  other  car  with  a  grab-iron  or 
handhold.    Having  done  so,  it  was  not  absolutely  bound  to 


APPENDIX    G.  831 

insure  that  the  coupler  on  the  one  car  and  the  grab-iron  on  the 
other  were  constantly  in  good  order — that  the  coupler  was 
always  in  a  workable  condition  or  the  grab-iron  always  in  a 
condition  for  use.  The  coupling  apparatus  on  railroad  cars 
is  subjected  at  all  times  while  they  are  in  operation  to  almost 
constant  strain  and  wrench  and  liability  to  breakage.  The 
handholds  are  also  in  use  more  or  less  and  are  subjected  to 
strain  and  liability  to  breakage  caused  by  such  use.  Much 
of  the  time  cars  are  connected  up  in  trains  running  on  time 
schedules  and  are  under  the  orders  of  train  dispatchers,  which 
must  be  observed  or  fatal  and  disastrous  consequences  may 
ensue.  Then,  again,  accidents  to  couplers  or  grab-irons,  or 
unknown  defects  in  them,  may  appear  at  places  more  or  less 
remote  from  repair  shops.  It  is  just  and  reasonable  that  a 
carrier  should  exercise  a  high  degree  of  care  to  keep  its 
couplers  and  grab-irons  in  proper  condition,  but  it  would  be 
unjust  and  unreasonable  to  say  that,  having  fulfilled  its  ut- 
most duty  in  that  regard,  it  should  be  held  responsible  for  a 
condition  which  might  occur  without  its  fault.  What,  then, 
were  the  duties  of  the  railroad  company  in  the  maintenance 
of  the  coupler  and  grab-iron  in  workable  condition  and  good 
repair  ? 

Having  properly  equipped  the  cars  in  question  as  required 
by  statute,  the  railroad  company  was  bound  to  exercise  that 
reasonable  degree  of  diligence — all  reasonable  possible  en- 
deavor— to  inspect  and  keep  the  coupler  and  grab-iron,  re- 
spectively, in  workable  condition  and  repair,  which  would 
be  proportionate  to  the  danger  in  the  use  of  each,  and  you 
are  to  consider  the  nature  of  the  defendant's  business  and 
the  use  to  which  its  cars  and  the  couplers  and  grab-irons 
thereon  are  subjected  in  measuring  what  would  be  that  rea- 
sonable degree  of  diligence  in  inspecting.  The  railroad  com- 
pany's duty  of  inspection  was  a  continuing  one.  Reasonable 
care  required  that  the  coupler  and  grab-iron  in  question 
should  have  been  inspected  at  reasonable  intervals  of  time  by 
skillful  and  competent  inspectors  who  were  selected  with 
ordinary    care.     By  ordinary  care  I  mean  that  care  which  a 


832  FEDERAL  SAFETY  APPLIANCE  ACT. 

reasonably  prudent  man  would  ordinarily  exercise  under 
circumstances  and  in  a  situation  similar  to  that  in  which  the 
defendant  company  found  itself. 

If  you  find  from  the  evidence  that  the  Government  has 
proved  that  the  first  of  these  cars  was  loaded  with  interstate 
traffic,  that  the  other  was  hauled  in  a  train  which  was  en- 
gaged in  interstate  traffic,  that  on  the  car  first  mentioned 
there  was  a  defective  coupler,  as  charged,  and  on  the  car 
in  the  second  cause  of  action  mentioned  the  grab-iron  was 
missing,  and  that  the  defendant  was  hauling  these  cars  upon 
its  tracks  at  the  time  mentioned  and  as  alleged  in  the  amended 
petition,  then  the  railroad  company  was  bound  to  prove  that 
it  had  used  all  reasonable  possible  endeavor  to  perform  its 
duty  to  discover  and  correct  such  defects.  If  it  did  this,  it 
is  entitled  to  your  verdict.  If  it  failed  to  do  so,  your  verdict 
should  then  be  for  the  Government,  on  one  or  both  of  the 
causes  of  action,  as  the  case  may  be. 

If  the  coupler  was  defective,  as  alleged,  and  the  grab-iron 
was  missing  on  October  14,  1907,  they  each  must  have 
become  so  at  some  time  previous  to  the  date  at  which  the 
inspectors  say  they  saw  such  defects  in  the  respective  cars, 
and  if  the  defects  existed  and  the  defendant  had  knowledge  of 
them,  or  should  with  reasonable  diligence  have  had  notice  of 
them,  and  with  such  knowledge,  actual  or  implied,  continued 
without  some  justifying  necessity  to  haul  the  car  mentioned 
in  the  first  cause  of  action,  as  therein  stated,  when  loaded 
with  goods  which  were  the  subject  of  interstate  commerce,  or 
the  other  car,  as  charged  in  the  second  cause  of  action,  in  a 
train  which  was  hauling  interstate  traffic,  then  it  violated  the 
statute  and  your  verdict  should  be  for  the  Government  on 
one  or  both  of  the  counts,  as  the  evidence  may  justify. 

If  you  find  from  the  evidence  that  the  railroad  company 
started  these  cars,  or  either  of  them,  in  transit  on  their 
journey,  the  one  with  a  defective  coupler,  which  could  have 
been  discovered  by  the  sort  of  inspection  which  I  have  men- 
tioned, and  the  other  with  the  missing  grab-iron,  which  could 
have  been  discovered  by  the  same  kind  of  inspection,  then 


APPENDIX    G. 


833 


the  company  would  be  liable  and  your  verdict  should  be 
against  it  on  both  or  either  of  the  counts,  as  you  may  find 
t'rom  the  facts. 

If  the  coupler  on  the  one  car  was  defective,  as  alleged, 
when  the  car  was  started  in  transit  on  the  day  mentioned, 
and  the  defect  was  not  discoverable  by  the  kind  of  inspection 
I  have  named,  or  if  it  was  not  defective  at  all,  your  verdict 
should,  as  to  the  first  cause  of  action,  be  for  the  defendant; 
it  should  be  for  the  defendant  on  the  second  cause  of  action 
also,  even  if  the  grab-iron  was  missing  from  the  car  therein 
mentioned,  if,  by  the  same  sort  of  inspection,  the  defect  was 
not  discoverable,  or  if  the  grab-iron  in  fact  was  not  missing. 

If  you  should  fijid  from  the  evidence  that  the  automatic 
coupler  was  defective  and  out  of  repair,  as  charged,  on  the 
one  car;  but  that  the  grab-iron  on  the  other  was  missing,  as 
alleged ;  that  on  the  date  named  the  first  car  was  transporting 
interstate  traffic  and  the  second  was  hauled  in  a  train  used 
for  transporting  such  traffic,  and  that  the  railroad  company 
used  all  reasonably  possible  endeavor  in  the  performance  of 
its  duty  of  inspection  to  determine  whether  or  not  there  was 
any  defect  in  the  coupler  or  the  grab-iron,  and  that,  if  from 
such  inspection  it  found  no  defect,  then  the  railroad  com- 
pany performed  its  duty  and  is  not  liable,  and  your  verdict 
should  be  for  it  on  one  or  both  causes  of  action,  as  the  facts 
warrant. 

Portions  of  the  testimony  conflict.  Was  the  coupler  defec- 
tive and  the  grab-iron  missing  in  the  manner  charged  in  the 
amended  petition  on  the  14th  day  of  October,  1907?  The 
Government  offered  two  inspectors  as  witnesses.  They  tes- 
tified that  they  were  at  Holloway  on  that  date  and  within  a 
few  minutes  prior  to  the  departure  of  the  train  called  first 
83,  pulled  by  engine  No.  2270,  and  that  they  saw  and 
examined  car  No.  57677,  which  was  in  that  train.  At 
that  time  they  each,  so  they  say,  entered  in  a  memorandum 
Dook  what  they  testify  they  respectively  observed,  and  they 
iiave  described  to  you  what  they  say  they  saw  defective  in 
the  coupler.    They  fixed  the  time  of  that  train's  departure 


834  FEDERAL  SAFETY  APPLIANCE  ACT. 

at  9  :50  in  the  morning,  eastern  time.  These  inspectors  also 
say  that  about  10 :40  in  the  morning  they  saw  the  other  train, 
being  second  83,  drawn  by  engine  No  2203,  in  which  train 
was  car  No.  X-5110,  and  that  it  moved  out  of  the  yards 
about  11 :20  in  the  morning,  eastern  time.  They  told  you 
that  they  saw  that  the  grab-iron  in  question  was  missing 
from  the  car  and  that  each  made  a  memorandum  as  to  that. 
The  conductor  of  the  first  train,  offered  as  a  witness  by  the 
defendant,  testified  that  his  train  moved  out  of  HoUoway  on 
the  date  in  question  at  6 :35  a.  m.,  and  produced  his  record 
or  memorandum,  which  he  said  was  made  at  the  time,  con- 
taining an  entry  of  the  departure  of  his  train  at  that  hour. 
The  conductor  of  the  second  train  testified  in  behalf  of  the 
defendant  that  his  train  on  that  date  left  HoUoway  at  10 :25 
central  time,  and  that  he  at  that  time  made  a  record  or 
memorandum  of  his  hour  of  departure,  which  memorandum 
he  produced  as  a  wdtness.  There  may  have  been  other  evi- 
dence by  one  or  the  other  or  both,  of  the  parties  as  to  the 
departure  of  those  trains.  You  will  remember  as  to  that,  as 
I  am  not  pretending  to  direct  your  attention  to  all  the  evi- 
dence or  for  any  purpose  other  than  that  of  illustration  and 
of  bringing  to  your  notice  some  of  the  matters  which  you 
should  consider.  Wlio  is  in  error  as  to  the  time  of  the  de- 
yjarture  of  those  trains?  If  the  first  train  departed  at  6:35 
in  the  morning,  these  inspectors  could  not  have  seen  the 
engine,  or  the  car,  or  the  train  at  all.  There  is  no  evidence 
to  show  that  they  were  in  the  location  of  the  train  or  the 
car  until  a  few  minutes  prior  to  9 :50  a.  m.  They  gave,  how- 
ever, correctly  the  number  of  each  of  the  cars  mentioned  in 
the  amended  petition  and  of  each  of  the  engines  which  pulled 
them.  The  evidence  shows  that  both  engines  arrived  at  Lorain 
on  the  same  day,  and  tliat  engine  number  2270  had  in  its  train 
at  Lorain  the  car  in  the  first  cause  of  action  mentioned,  and 
on  the  same  day,  and  that  engine  No.  2270  had  in  its  train 
that  engine  numbered  2203  handled  the  other  car.  One  of  the 
questions  to  be  answered  by  you  is.  How  could  the  inspectors 
have  gotten  the  numbers  of  the  engines  and  the  numbers  of 


APPENDIX    G,  835 

the  cars  unless  they  saw  them  at  Holloway?  Are  they  and 
their  memoranda,  or  are  the  railroad  employees  and  their 
memoranda,  in  error?  You  must  take  all  of  the  evidence 
touching  the  departure  and  movement  of  these  trains  and 
determine  where  the  truth  lies. 

In  reaching  a  conclusion  as  to  whether  the  coupler  was 
defective,  or  the  grab-iron  missing,  you  will  consider  the 
degree  of  care  with  which  the  Government  inspectors  and 
railway  employees,  respectively,  made  their  respective  inspec- 
tions, and  the  probability  or  improbability  of  mistake  therein. 
Who  made  the  more  careful  inspection?  You  have  heard  the 
evidence  of  the  two  Government  inspectors  whose  duty  it  is 
to  examine  cars  with  reference  to  their  safety  appliances. 
The  defendant  offered  as  witnesses :  conductors,  trainmen, 
and  also  inspectors  whose  duty  it  is  to  inspect  cars,  and  these 
employees  all  detailed  what  they  did  in  the  way  of  inspection. 
The  Government  inspectors  say  they  observed  a  defective 
coupler  and  a  missing  grab-iron.  The  other  witnesses  say 
they  did  not  observe  such.  One  of  the  defendant's  witnesses 
said  that  he  spent  about  a  minute  and  a  half  on  a  car  in  his 
inspection.  It  is  for  you  to  say  how  thoroughly,  in  that 
time,  he  could  inspect  it,  and  whether  or  not  he  would  learn 
as  much  about  a  car  as  the  other  men  whose  business  it  is 
to  inspect.  How  much  time  other  railroad  employees  spent 
on  each  car  does  not  appear  in  the  record,  as  I  recall  it, 
but,  as  to  that,  use  your  own  memories.  Another  one  said 
he  inspected  the  bolsters  underneath,  the  couplers,  the  hand- 
holds, the  whole  car.  You  must  decide  for  yourselves  whose 
testimony  you  "wdll  accept  as  regards  the  condition  of  the 
two  cars,  giving  to  each  witness  such  credibility  and  weight 
as  you  think  he  should  have. 

Something  has  been  said  in  your  hearing  about  the  in- 
spectors not  having  directed  the  attention  of  the  railroad 
employees  to  what  they  say  was  the  defective  condition  of 
the  coupler  and  grab-iron,  respectively.  They  were  not  re- 
quired to  direct  the  railroad  employees'  attention  to  any 
defects.    It  was  no  part  of  their  duty  to  do  so. 


836  FEDERAL    S.VTETY    APPLIANCE    ACT. 

Evidence  was  given  that  on  or  about  October  12,  1907,  car 
No.  X-5110  was  repaired,  a  new  truck  bolster  being  applied, 
and  that  both  cars  in  question  were  inspected  at  Lorain, 
one  on  the  20th,  as  I  remember,  and  the  other  on  the  26th 
of  the  month,  and  that  neither  of  the  cars  were  shopped,  as 
it  is  called,  between  those  respective  dates  and  the  14th.  The 
value  of  that  testimony  is  to  be  determined  by  you.  The 
real  question  is.  What  was  the  condition  of  ihe  cars  on  the 
14th?  Was  there  on  that  date,  as  is  charged,  a  defective 
coupler  on  the  one  and  a  missing  grab-iron  on  the  other?  You 
must  answer  that  from  all  the  evidence  that  was  given  touch- 
ing upon  that  issue. 

Some,  perhaps  all,  of  those  who  testified  in  behalf  of  the 
defendant,  and  some  of  those  who  testified  for  the  Govern- 
ment, are  railroad  employees.  Two  of  the  witnesses  offered 
by  the  Government,  who  were  called  detectives  in  the  course 
of  the  argument,  are  inspectors  in  the  employ  of  the  Inter- 
state Commerce  Commission.  It  is  necessary  that  the  railroad 
company  should  employ  men  to  do  its  business.  It  is  also 
necessary  that  the  Government  should  employ  men  to  look 
after  its  business  and  to  see  that  the  law  is  observed.  These 
men  who  testified  before  you,  whether  they  ire  railroad  em- 
ployees or  inspectors,  are  not  to  be  disbelieved  simply 
because  they  work  for  the  defendant  or  are  in  the  Govern- 
ment's service,  as  the  case  may  be.  You  are  the  judges  of 
the  weight  of  the  evidence  and  the  credibility  of  witnesses. 
Taking  each  of  these  witnesses  as  you  saw  him,  and  his  evi- 
dence as  you  heard  it,  consider  his  intelligence,  his  means  and 
opportunities  of  knowledge  concerning  that  about  which  he 
testified,  whether  or  not  he  is  corroborated  or  uncorroborated, 
the  probability  or  improbability  of  his  statements,  his  conduct 
on  the  witness  stand,  and  all  other  facts  disclosed  by  the 
evidence,  and  then  determine  the  degree  of  credibility  to  be 
given  to  him. 

Wliat  the  government  inspectors  state  they  saw  regarding 
the  coupler  and  the  grab-iron  was  characterized  in  argument 


APPENDIX   G.  837 

as  positive  testimony.  Other  witnesses,  in  the  employ  of  the 
defendant,  testified  that  they  did  not  see  any  such  defects, 
and  this  has  been  characterized  by  the  Government's  counsel 
as  being  negative  testimony,  while  defendant's  counsel  insist 
that  it  is  positive.  Positive  testimony  is  to  be  preferred  to 
negative  testimony,  other  things  being  equal.  That  is  to  say, 
when  a  credible  witness  testifies  to  having  observed  a  fact 
at  a  particular  time  and  place,  and  another  equally  credible 
witness  testifies  to  having  failed  to  observe  the  same  fact, 
having  the  same  or  equal  opportunity  so  to  observe  such  fact, 
the  positive  declaration  is  to  be  preferred  to  the  negative 
in  the  absence  of  other  testimony  corroborating  the  one  or 
the  other.  But  what  may  be  negative  testimony  under  one 
state  of  facts  is  not  negative  under  another.  For  instance,  a 
man  might  testify  that  he  did  not  hear  a  whistle  blown  or 
bell  rung.  He  is  testifying  to  a  negative  circumstance  and 
his  testimony  perhaps  is  not  entitled  to  as  much  weight  as 
the  testimony  of  a  man  who  says  he  did  hear;  but  if  it 
was  his  duty  to  hear  the  whistle  or  the  bell,  then  if  the  wit- 
ness saj's  he  did  not  hear  it,  while  his  testimony  is  negative 
in  character,  yet  because  it  was  his  duty  to  hear,  other  things 
between  the  witnesses  being  equal,  his  testimony  should  be 
given  the  same  weight  as  the  testimony  of  tha  man  who  said 
he  heard  the  bell  or  whistle. 

Now,  it  is  the  same  with  the  testimony  in  this  case.  If 
you  find  it  was  the  duty  of  the  inspectors  on  xhe  part  of  the 
railroad  company  to  inspect  the  cars  and  that  they  did  inspect 
them  and  did  not  see  the  defective  coupler  or  the  missing 
grab-iron,  that  is  not  such  negative  testimony  as  not  to  receive 
the  same  consideration,  other  things  being  equal  between  the 
witnesses,  as  positive  testimony.  It  would  then,  as  would 
that  of  the  Government  inspectors,  be  positive  testimony. 

When  you  retire  to  the  jury  room  you  may  select  one  of 
your  o\^Ti  number  as  foreman.  You  will  understand  that 
you  are  to  act  impartially  as  betAveen  the  parties.  The  fact 
that  one  party  is  the  Government  and  the  other  a  railroad 
company  should  not  cause  you  to  discriminate  in  the  slightest 


838  FEDERAL    SAFETY    APPLIANCE    ACT. 

against  either.  They  stand  on  an  absolute  equality.  The  law 
is  no  respector  of  persons.  Deal  conscientiously  with  the  par- 
ties.    You  may  retire. 


UNITED  STATES  v.  WABASH-PITTSBURGH  TER- 
MINAL RAILWAY  COMPANY. 

(United  States  District  Court,  Western  District  of  Pennsylvania.) 
November  3,   1909. 

1.  The  maintenance  of  one  grab-iron  or  handhold  on  each  side  of  the 
car  near  the  "B"  end  is  not  a  compliance  with  the  Federal  Safety 
Appliance  Act,  as  the  necessity  of  having  such  grab-iron  or  hand- 
hold upon  each  side  of  the  car  near  each  end  of  the  car  is  fairly 
contemplated  by  the  very  language  of  the  Act. 

John  II.  Jordan,  United  States  Attorney,  and  jNIonroe  C. 
List,  special  assistant  United  States  Attorney,  for  the  United 
States. 

James  R.  JMiller  and  H.  F.  Baker,  for  the  defendant. 
Orr,  District  Judge  (charging  jury)  : 

This  is  an  action  of  assumpsit  brought  by  the  United  States 
against  the  Wabash-Pittsburgh  Terminal  Railway  Company 
to  recover  from  the  railway  company  for  the  violations  of  an 
Act  of  Congress  which  is  entitled,  "An  Act  to  promote  the 
safety  of  employees  and  travelers  upon  railroads  by  com- 
pelling common  carriers  engaged  in  interstate  commerce  to 
equip  their  cars  with  automatic  couplers  and  continuous 
brakes,  and  their  locomotives  with  driving-wheel  brakes,  and 
for  other  purposes."  The  fourth  section  of  the  Act  says, 
"that  from  and  after  the  1st  day  of  July,  1895,  unless  other- 
wise ordered  by  the  Interstate  Commerce  Commission,  it  shall 
be  unlawful  for  any  railroad  company  to  use  any  car  in 
interstate  commerce  that  is  not  equipped  with  secure  grab- 
irons  or  handholds  in  the  ends  and  sides  of  each  car  for 
greater  security  to  men  in  coupling  and  uncoupling  the  cars. ' ' 

Most  of  the  causes  of  action  in  this  complaint  relate  to  the 
section  that  I  have  just  read.     Some  relate,  however,  to  an- 


APPENDIX    G.  839 

other  section  of  the  Act,  being  Section  2,  wherein  it  is  pro- 
vided that  "on  and  after  the  1st  of  January,  1898,  it  shall 
be  unlawful  for  any  such  common  carrier  to  haul  or  permit 
to  be  hauled  or  used  on  its  line  any  car  used  in  moving  inter- 
state traffic  not  equipped  with  couplers  coupling  automatically 
by  impact,  and  which  can  be  uncoupled  without  the  necessity 
of  men  going  between  the  ends  of  the  cars."  And  the  Act 
provides  that  "any  common  carrier  using  or  carrying  or  per- 
mitting to  be  hauled  or  carried  on  its  line  any  car  in  violation 
of  the  provisions  of  this  Act  shall  be  liable  to  a  penalty  of 
$100  for  each  and  every  such  violation,"  to  be  recovered  in  a 
suit  such  as  is  now  before  the  court. 

It  is  admitted  that  the  defendant  is  a  common  carrier  en- 
gaged in  interstate  traffic ;  that  the  cars  upon  which  the 
alleged  defects  appeared  were  engaged  in  the  transportation 
of  interstate  commerce,  and  it  is  not  denied  that  the  cars,  to 
which  your  attention  has  been  called  by  initials  and  numbers, 
were  defective  in  the  matter  of  couplers ;  and  it  is  not  denied 
by  evidence  other  than  a  plan  that  has  been  introduced  by 
consent,  that  the  cars  did  not  have  grab-irons  and  handholds 
as  required  by  the  Act  of  Congress ;  but  the  defendant  insists 
that  the  cars  without  the  grab-irons  and  handholds  on  the 
sides,  as  testified  by  the  \\dtnesses,  were  not  constructed  and 
maintained  in  violation  of  the  terms  of  this  Act  of  Congress. 
Defendant  insists  that,  because  it  has  one  grab-iron  or  hand- 
hold on  each  side  of  each  car  near  the  "B"  end,  where  the 
coupling  is  to  take  place,  the  law  has  been  complied  with  and 
that  it  is  not  necessary  to  have  a  grab-iron  or  handhold  upon 
the  side  of  each  car  near  the  other  end  of  the  car,  the  "A" 
end,  as  it  has  been  explained  to  you. 

Now,  I  hold,  and  so  instruct  you,  that  the  maintenance  of 
one  grab-iron  or  handhold  on  each  side  of  the  car  near  the 
"B"  end  thereon  is  not  a  compliance  with  the  Act  of  Con- 
gress. I  think  the  necessity  of  having  such  grab-irons  or 
handholds  upon  the  sides  of  the  car  near  either  end  of  the 
car  is  fairly  contemplated  by  the  very  language  of  the  Act, 
because  it  contemplates  in  this  language,  "secure  grab-irons 


840  FEDERAL  SAFETY  APrLIANCE  ACT. 

or  handholds  in  the  sides  of  each  car."  It  contemplates,  it 
seems  to  me,  although  it  is  not  exactly  plain,  that  the  side  of 
each  car  ought  to  have  more  than  one  grab-iron  or  handhold, 
contemplated  by  the  very  language  of  the  Act,  because  it  con- 
templates in  this  language,  ''secure  grabirons  or  handholds 
in  the  sides  of  each  car."  It  contemplates,  it  seems  to  me, 
although  it  is  not  exaxctly  x^lai^^  that  the  side  of  each  car 
ought  to  have  more  than  one  grab-iron  or  handhold. 

I  instruct  you,  under  the  evidence,  to  find  a  verdict  for  the 
plaintiff,  the  United  States,  for  $1,200  for  the  causes  of  action. 


UNITED  STATES  v.  PENNSYLVANIA  RAILROAD 
COMPANY. 

(United  States  District  Court.  Western  District  of  Pennsyilvania. ) 
jSTowmber  3,   1909. 

1.  It  is  imperative  that  the  couplings  on  both  ends  of  every  car  used 

in  interstate  commerce  should  be  capable  of  being  operated  in  the 
manner  intended  by  the  Federal  Safety  Appliance  Act,  so  as  to 
make  it  unnecessary  for  an  employee  to  go  between  the  ends  of  the 
cars. 

2.  It  appears  that  the   car   involved   in  this  case  was   in  control   of   a 

crew  of  the  Panhandle  Hallway  Company^  but  it  was  hauled,  and 
permitted  to  be  hauled,  over  the  tracks  of  the  line  of  the  defendant 
in  a  defective  condition  toward  its  destination:  Held,  That  the 
defendant  is  liable  for  the  statutory  penalty. 

3.  Reasonable   care,   or   the   utmost   care,   on   the   part   of   the    railroad 

company,  will  not  excuse  it  from  liability  under  the  Safety  Appli- 
ance Act.  It  is  not  necessary  to  prove  willful  negligence,  or  any 
negligence  at  all,  on  the  part  of  such  carrier  in  order  to  make  it 
liable  for  the  penalty. 

John  II.  Jordan,  United  States  attorney,  and  ^Monroe  C. 
List,  special  assistant  United  States  attorney,  for  the  United 
States. 

Patterson,  Sterrett  &  Aciieson,  for  the  defendant. 

Orr,  District  Judge   (charging  jury)  : 

The  case  that  has  been  tried  before  you  is  a  case  by  the 
United  States  against  the  Pennsylvania  Railroad  Company 
to  recover  a  penalty  provided  by  the  Safety  Appliance  Act,  as 


APPP]NDIX    G.  841 

amended  and  passed  by  Congress.  Whether  or  not  that  Act 
meets  with  your  approval  or  mine  is  not  the  question.  It  is 
a  question  of  whether  or  not  there  has  been  a  violation  of 
that  Act,  and  whether  or  not  under  the  evidence  in  this  case 
the  defendant  has  been  guilty  of  that  violation. 

The  Act  was  passed  with  a  view,  I  presume,  of  doing  some- 
thing to  prevent  injuries  to  trainmen.  It  has  been  the  ex- 
perience of  us  all — more  in  times  past,  perhaps,  than  in  the 
present — that  when  we  would  shake  hands  with  a  railroad 
employee,  oftentimes,  especially  in  and  about  the  yards,  we 
would  find  that  the  hand  was  not  all  there,  and  we  cannot 
help  but  appreciate  that  with  the  loss  of  a  portion  of  such  a 
valuable  member  as  the  hand,  a  source  of  wealth  to  the 
United  States  was  diminished;  and  therefore  Congress  under- 
took, as  I  say,  to  pass  an  Act  requiring  railroads  to  conform 
to  certain  provisions,  and  imposing  penalties  if  they  did  not 
so  conform,  and  authorizing  a  suit  to  be  brought,  such  as  this, 
to  recover  those  penalties  where  the  Act  had  been  violated. 

That  Act  provides  that  "it  shall  be  unlawful  for  any 
common  carrier  to  haul  or  permit  to  be  hauled  or  used  on  its 
line,  any  car  used  in  moving  interstate  traffic  not  equipped 
Avitli  couplers  coupling  automatically  l)y  impact,  and  which 
can  be  uncoupled  without  the  necessity  of  men  going  between 
the  ends  of  the  cars,"  and  it  provides  that  for  each  offense 
such  railroad  may  be  liable  to  p>ay  the  sum  of  $100. 

I  say  to  you  that  Congress  had  power  to  pass  this  Act,  so 
far  as  it  related  to  interstate  commerce,  and  that  is  all  it 
pretends  to  relate  to.  By  that  Act  there  is  imposed  an  im- 
perative duty  upon  eacli  railroad  company  engaged  in  inter- 
state commerce ;  that  is,  commerce  between  the  states  and  not 
intrastate  commerce,  within  the  state,  to  comply  with  the 
provisions,  and  if  a  car  is  not  equipped  with  couplers — ^the 
plural  is  used — coupling  automatically  by  impact,  and  which 
can  be  uncoupled  without  the  necessity  of  men  going  between 
the  ends  of  the  cars,  then  the  railroad  company  is  liable.  And 
I  say  to  you  that  it  is  not  material  to  this  case  that  the  car 
to  which  the  defective  couplings  may  be  attached  is  not  de- 


842 


FEDERAL  SAFETY  APPLIANCE  ACT. 


fective,  and  that  the  two  cars  may  be  separated  by  the  use 
of  the  coupling  on  the  one  car  that  is  not  defective ;  but  it  is 
imperative  that  the  couplings  on  both  ends  of  each  car  should 
be  capable  of  being  used  in  the  manner  intended  by  the  Act, 
so  as  to  prevent  a  person  from  going  between  the  cars. 

It  is  charged  in  this  case  that  the  Pennsylvania  Railroad 
Company,  on  or  about  the  17th  of  November,  1906,  permitted 
a  train  to  leave  its  yards  at  Piteairn,  in  which  there  was  a 
car  used  in  interstate  commerce,  that  car,  I  believe,  being 
bound  to  St.  Louis,  or  in  that  neighborhood.  It  is  true  it 
appears  that  the  car  was  in  control  of  a  crew  of  what  is  known 
as  the  Panhandle  Railroad  Company ;  that  is,  the  Pittsburgh, 
Cincinnati,  Chicago  &  St.  Louis;  that  that  was  the  point  of 
delivery  by  the  Pennsylvania  Railroad — to  the  Panhandle 
Railroad — of  this  freight  and  of  this  car.  But  it  also  appears 
that  car  left  the  Piteairn  yards  and  was  hauled  and  permitted 
to  be  hauled  over  the  tracks  of  the  line  of  the  Pennsylvania 
Railroad  Company  on  toward  its  destination. 

Now,  it  is  not  disputed  that  this  car  was  defective  in  that 
the  coupler  on  the  ''B"  end  had  a  broken  clevis  and  clevis 
pin.  That  being  the  case,  the  Pennsylvania  Railroad  Com- 
pany is  liable  to  a  penalty. 

I  say  to  you,  as  a  matter  of  law,  that  reasonable  care  or  the 
utmost  care  on  the  part  of  the  railroad  company  will  not 
excuse  the  company  from  liability  under  this  Act.  It  seems 
a  hard  rule,  but  it  is  a  rule  that  is  laid  down  in  this  Act,  and 
that  rule  must  be  enforced  in  order  to  accomplish  the  purposes 
intended  by  Congress  when  the  Act  was  passed,  and  I  say  to 
you  that  willful  negligence  is  not  necessary  to  be  shown  on 
the  part  ot  the  railroad  company,  or  any  negligence  at  all  on 
the  part  of  the  railroad  company,  except  to  show  that  a  car 
used  in  interstate  commerce  was  not  equipped  in  accordance 
•with  the  provisions  of  this  Act  of  Congress. 

There  is  no  dispute  of  fact  in  this  case  that  I  can  see,  and  I 
therefore  direct  you  to  find  a  verdict  for  the  plaintiff  in  the 
sum  of  $100,  being  the  amount  of  the  penalty  prescribed  by 
the  Act. 


APPENDIX    G.  °^^ 


UNITED   STATES  v.   ATCHISON,   TOPEKA   &   SANTA 
FE  RAILWAY  COMPANY. 

(United   States   District   Court,   Northern   District  of   Illinois.) 
December  27,  1900. 

1.  The    statute   provides   that   interstate   cars    shall    have   secure   grab- 

irons  or  handholds  on  the  ends  and  sides  of  each  car.  The  only 
question  arising  in  this  case  was  whether  the  coupling  lever  con- 
stituted a  secure  grab-iron  or  handhold  on  the  end  of  the  car,  as 
the  statute  has  not  definitely  and  distinctly  defined  what  is  a 
secure  grab-iix)n  or  handhold.  It  is  for  the  jury  to  answer  that 
question  and  determine  whether  or  not  the  coupling  lever  that  wa5 
provided  was  a  secure  grab-iron  or  secure  handhold  within  the 
meaning  of  the  statute. 

2.  The  mere  fact  that  the  coupling  lever  was  used  for  the  coupling  and 

uncoupling  of  cars  was  no  reason  why  it  could  not  be  used  as  a 
grab-iron,  always  assuming  that  it  was  so  placed  and  was  of  such 
material  and  such  size  that  it  did  constitute  a  secure  grab-iron  or 
handhold. 

3.  A  suit  for  penalty  under  the  Federal  Safety  Appliance  Acts  is  civil 

in    its    nature,    and    the    verdict    should    be    brought    in    upon  the 

preponderance  of  the  evidenc-e.  The  phrase  "preponderance  of  the 
evidence"  discussed  and  defined. 

4.  The   jury   should   not   cast   out   the   testimony   of  witnesses   for  the 

United  States  because  they  are  inspectors  in  the  employ  of  the 
Interstate  Commerce  Commission;  nor  should  they  cast  out  the 
testimony  of  the  defendant's  witnesses  because  they  are  in  th'i 
employ  of  a  railway  company,  but  all  those  things  are  to  be  taken 
into  consideration  by  the  jury  in  determining  the  probable  weight 
which  should  be  given  to  the  testimony. 

Edwin  W.  Sims,  United  States  attorney,  and  Harry  A. 
Parkin,  assistant  United  States  attorney,  for  the  United 
States. 

Robert  Dunlap,  Lee  F.  English,  and  James  L.  Coleman, 
for  the  defendant. 

Landis,  District  Judge  (charging  jury)  : 

In  this  suit  the  United  States  seeks  the  recovery  of  $100  as 
a  penalty  claimed  by  the  Government  to  have  been  incurred 
by  the  Atchison,  Topeka  &  Santa  Fe  Railway  Company,  de- 
fendant, by  reason  of  the  failure  of  the  defendant  company 
to  comply  with  a  certain  statute  of  the  United  States.  That 
statute  provides  that  it  shall  be  unlawful  for  any  railroad 


844  FEDERAL    SAFETY    APPLIANCE   ACT, 

company  to  use  any  car  in  interstate  commerce  that  is  not 
provided  with  secure  grab-irons  or  handholds  on  the  ends  and 
sides  of  each  car  for  greater  security  to  men  in  coupling  and 
uncoupling  cars.  In  this  case  you  have  nothing  to  do  with 
any  controversy  as  to  whether  or  not  the  car  in  question  was 
being  used  in  interstate  commerce.  It  was.  The  only  ques- 
tion here  is  whether  the  coupling  lever  v/hich  the  witnesses 
have  testified  about  was  so  placed,  was  of  such  size  and 
strength,  as  that  in  its  condition  and  the  position  in  which  it 
was  at  the  time  in  question  it  constituted  a  secure  grab-iron 
or  handhold  on  the  end  of  that  car.  What  is  a  secure  grab- 
iron  or  handhold  the  statute  has  not  definitely  and  distinctly 
defined.  It  is  for  you  to  answer  that  question  and  determine 
whether  or  not  this  coupling  lever  that  was  provided  was  a 
secure  grab-iron  or  secure  handhold  within  the  meaning  of 
this  statute.  If  it  was,  then  your  finding  should  be  in  favor  of 
the  defendant,  for  the  mere  fact  that  the  coupling  lever  was 
used  for  the  coupling  and  uncoupling  of  cars  was  no  reason 
why  it  could  not  be  used  as  a  grab-iron,  always  assuming  that 
it  was  so  placed  and  was  of  such  material  and  such  size  that 
it  did  constitute  a  secure  grabiron  or  handhold.  If  you  find 
that  it  was  not,  then  you  will  find  against  the  defendant. 

Now,  in  this  case,  which  is  a  civil  case,  the  rule  is  that  if  the 
evidence  shows  by  a  preponderance  that  this  coupling  lever 
was  not  a  secure  grab-iron  or  handhold,  as  those  terms  are 
used  in  this  statute,  then  the  defendant  is  guilty.  If  there 
is  no  preponderance  of  the  evidence,  that  is  to  say,  if  the 
evidence  is  evenly  balanced  and  you  cannot  say  on  which 
side  is  the  preponderance,  then  your  verdict  must  be  in  favor 
of  the  defendant,  and  "not  guilty."  If  the  preponderance 
of  the  evidence  is  for  the  defendant,  then  your  verdict  must 
be  "not  guilty."  In  t])is  respect  this  case  differs  from  a  case 
which  all  of  you,  or  some  of  you,  on  a  recent  occasion,  heard 
in  the  criminal  branch  of  this  court.  You  will  recall  that  in 
that  case  the  rule  which  the  court  defined  to  you  as  applicable 
was  the  rule  that  required  the  evidence  to  convince  the  jury 
beyond  all  reasonable  doubt  of  the  defandant's  guilt  before 


APPENDIX    G.  845 

a  verdict  could  be  returned  against  the  defendant.  Not  so 
here. 

Now,  what  is  meant  by  a  preponderance  of  the  evidence  ? 
The  best  I  can  say  to  you  as  to  what  the  phrase  "preponder- 
ance of  the  evidence"  means  is  looking  over  the  whole  case,  all 
the  evidence  in  the  case,  considering  the  testimony  of  each 
and  all  the  witnesses,  including  the  stipulation  which  has 
been  read  in  evidence  as  being  the  statement  of  what  a  witness 
who  was  not  present  here  would  have  testiiied  to  had  he  been 
called ;  looking  over  all  the  evidence  in  the  case,  sifting  out 
that  which  is  untrue  or  inaccurate  or  false,  laying  hold  of 
that  and  identifying  that  which  is  true  and  accurate  and 
commends  itself  to  you  as  being  the  truth  of  the  situation — 
on  which  side  is  the  greater  weight  of  such  evidence — in  sup- 
port of  the  proposition  that  this  thing  was  not  a  secure  grab- 
iron  or  handhold,  or  in  support  of  the  proposition  that  it 
was ;  or,  as  I  have  said  before,  if  there  is  no  weight,  then  your 
verdict  must  be  "not  guilty." 

Now,  in  determining  where  this  greater  weight  of  the  evi- 
dence is,  it  will  become  necessary  for  you  to  ascertain  who  has 
told  the  truth.  With  a  view  to  ascertaining  that  fact,  that  is  to 
say,  with  a  view  to  ascertaining  what  credit  you  will  give  to 
the  testimony  of  the  several  witnesses,  you  will  take  into  con- 
sideration their  interest  in  the  outcome  of  this  lawsuit,  or  their 
interest  in  the  subject  matter  of  this  lawsuit,  in  so  far  as  the 
evidence  dicloses  any  interest  on  their  part,  the  opportunity 
which  the  witness  or  witnesses  have  to  know  about  the  things 
respecting  which  they  have  testified,  the  disposition  of  the 
witness  or  witnesses  to  speak  candidly  and  freely  and  frankly 
and  openly  in  reply  to  the  interrogatories  respecting  the 
subject  matter  under  inquiry,  the  probability,  the  inherent 
probability  or  improbability,  of  the  truthfulness  of  the  wit- 
nesses' statements — all  these  things,  and  such  other  considera- 
tions as  your  experience  and  judgment  as  men  experienced  in 
the  affairs  of  life  suggest  to  your  minds,  with  a  view  to  de- 
termining who  told  the  truth  and  who  did  not  tell  the  truth. 
And  when  you  have  done  this  and  have  determined  where  the 


846  FEDERAL  SAFETY  APPLIANCE  ACT. 

truth  is,  then  it  is  quite  likely  that  you  will  have  determined 
where  ' '  preponderance ' '  is.  Preponderance  is  not  a  thing  that 
is  controlled  necessarily  by  the  number  of  witnesses.  The  pre- 
ponderance or  greater  weight  of  the  evidence  is  on  that  side 
of  the  controversy  where  the  truth  is,  and  it  may  be  with  the 
fewer  mtnesses  as  against  the  greater  number  of  the  witnesses. 
If  anybody  has  been  impeached  on  the  trial  of  this  case,  that 
is  to  say,  if  it  has  appeared  that  somebody  has  made  a  state- 
ment on  the  trial  of  this  case  contrary  to  the  statements  made 
on  another  trial  or  elsewhere  on  a  prior  occasion  respecting 
a  material  matter  in  this  inquiry,  the  law  is,  you  may  dis- 
regard his  entire  testimony  except  in  so  far  as  it  may  be 
corroborated  by  other  facts,  or  by  facts  and  circumstances 
proved  on  this  trial.  You  have  no  right  to  disregard  the 
testimony  of  any  witness  merely  because  he  is  employed  by 
somebody.  You  can  not  cast  out  the  testimony  of  these  two 
^^'itnesses  for  the  United  States  because  they  are  inspectors 
in  the  employ  of  the  Interstate  Commerce  Commission;  you' 
cannot  cast  out  the  testimony  of  the  defendant's  witnesses 
because  they  are  in  the  employ  of  the  defendant,  or  in  the 
employ  of  other  railway  companies,  though  all  of  those  things 
are  to  be  taken  into  consideration  by  the  jury  in  determining 
the  probable  weight  which  you  will  give  to  their  testimony. 
Now,  in  this  case  the  plaintiff  is  the  United  States,  and 
the  defendant  is  a  railway  company.  On  the  question  of 
financial  condition,  I  suppose  it  may  truthfully  be  said  they 
are  both  in  easy  circumstances.  So  the  question  of  the  matter 
referred  to  here  as  to  one  side  being  rich  makes  no  difference. 
It  may  be  that  it  is  proper  for  me  to  utter  a  word  of  ad- 
monition against  the  proposition  of  your  being  possibly 
inclined  against  the  defendant  because  it  is  a  railway  cor- 
poration. Your  services  here,  the  manner  in  which  you  have 
discharged  your  duties,  is  evidence  to  me  to  the  fullest  extent 
that  the  fact  that  somebody  is  being  sued  that  is  a  corporation 
is  not  a  fact  that  imperils  that  corporation's  rights  with 
you.  So,  if  you  consider  this  case  as  you  have  other  cases,  and 
decide  the  question  on  its  merits,  regardless  of  who  is  plain- 


APPENDIX    G.  847 

tiff  or  defendant,  and  regardless  of  whether  one  or  both  or 
any  are  in  good  financial  condition,  having  in  mind  no  other 
purpose  in  the  world  than  to  arrive  at  the  truth  of  the  con- 
troversy, you  will  have  discharged  your  duty  well. 


D.  S.  SNYDER  v.  SOUTHERN  RAILWAY  COMPANY. 

(In  the  Circuit  Court  of  the   United   States   for   the  Eastern  District 

of  Tennessee.) 

[Affirmed,   187  Fed.  492.] 

Decided  Januwry  21,  1910. 

1.  The  provisions  of  the  Federal  Safety  Appliance  Act  as  to  couplers 

was  intended  to  apply  not  merely  to  those  cars  which  are  being 
used  in  the  movement  of  interstate  traffic  at  a  given  moment,  but 
to  all  cars  hauled  or  used  on  its  line  that  are  customarily  and 
generally  employed  in  moving  interstate  traffic,  or  in  connection 
with  vehicles  used  in  moving  interstate  traffic. 

2.  A  car  regularly  used  in  moving  interstate   traffic,  or  in  connection 

therewith,  ig  subject  to  the  provisions  of  the  Safety  Appliance 
Act  in  reference  to  automatic  couplers  when  used,  although  at  the 
particular  time  it  is  being  hauled  empty  or  not  in  connection  witu 
the  movement  of  interstate  traffic. 

3.  The   Safety  Appliance   Act   is  a   remedial   statute,   and   must   be   so 

construed  as  to  accomplish  the  intent  of  Congress.  Its  provisions 
should  not  be  taken  in  a  narrow  sense,  nor  should  its  undoubted 
humanitarian  purpose  be  frittered  away  by  judicial  construction. 

4.  A  construction  exempting  from  the  operation  of  the  act  cars  which^ 

although  regularly  used  in  interstate  commerce,  were  not  being 
so  used  at  the  particular  time,  would  put  upon  the  employee  work- 
ing with  such  ear  the  practically  imjwssible  burden  of  ascertaining 
whether  or  not  a  given  car  was  in  fact  being  used  in  connection 
with  the  hauling  of  interstate  traffic  at  the  particular  time — that 
is,  of  ascertaining  the  character  of  its  load  and  that  of  the  other 
cars  in  the  train — in  determining  whether  or  not,  in  working  with 
it,  he  would  or  would  not  assume  the  risk  arising  from  its  being 
in  a  condition  which  did  not  comply  with  the  Safety  Appliance  Act. 

5.  A  car  regularly  used  by  an  interstate  carrier  on  its  interstate  line, 

which  is  not  segregated  and  set  apart  solely  for  local  traffic,  but 
is  regularly  and  habitually  used  in  the  movement  of  interstate 
traffic  or  in  connection  therewith,  is,  when  used  on  the  carrier's 
line,  subject  to  the  provisions  of  the  Safety  Appliance  Act  in 
reference  to  the  couplers  upon  it. 

6.  The  Safety  Appliance  Act  is  constitutional. 


848  FEDERAL  SAFETY  APPLIANCE  ACT. 

7.  A  car   arrived   at  the  Coster  yards  of  the   defendant  in  a  defective 

condition  several  days  before  the  accident;  it  had  not  been  re- 
paired at  the  Coster  shop,  wliere  it  could  have  been  repaired,  but 
had  been  hauled  away  from  this  repair  point  en  route  to  the 
repair  shops  at  Lenoir  City,  several  miles  away,  for  the  purpose 
of  being  there  repaired.  Held:  (a)  When  the  car  was  put  in  use, 
even  to  be  hauled  to  another  repair  shop,  after  it  had  been  for  some 
time  at  a  repair  shop  where  it  could  have  been  repaired,  it  was 
being  hauled  in  this  defective  condition  in  violation  of  the  Safety 
Appliance  Act.  (h)  Having  undertaken  to  haul  the  car  away  from 
a  repair  point,  it  remained  within  the  provisions  of  the  act,  even 
although  the  effort  was  afterwards  made  to  detach  the  car  and 
return  it  to  the  Coster  yard,  (c)  Having  once  moved  it  away  from 
the  Coster  yard,  where  it  should  have  been  repaired,  it  was  there- 
after moved  at  the  risk  of  the  carrier,  so  far  as  the  provisions  ol 
the  Safety  Appliance  Act  were  concerned. 

8.  Under   proof   as   to   the   temporary   purpose   for   which    the   plaintiff 

went  between  the  cars,  the  customary  method  of  doing  such  work, 
the  character  of  lookout  established  vnih.  the  crew  available,  tho 
time  of  day,  the  necessity  of  m.oving  out  the  cars  as  directed,  and 
all  the  circumstances  of  the  case,  the  verdict  of  the  jury,  involving 
in  effect  a  finding  both  that  the  defective  coupling  was  a  proximate 
cause  of  the  injury  and  that  the  plaintiff  was  not  guilty  of  con- 
tributory negligence  was  not  against  the  clear  and  decided  weight 
of  the  evidence. 

9.  A  court  is  always  more  reluctant  to  set  aside  a  verdict  when  it  is 

against  the  party  having  the  burden  of  proof,  as  the  defendant 
had  in  this  case,  upon  the  material  question  of  the  contributory 
negligence  of  the  plaintiff. 

10.  In   view  of   the   serious   character   of   the   injuries,    involving   great 

suffering  and  loss  of  time  and  the  permanent  disability  of  the 
plaintiff,  disabling  him  from  earning  a  livelihood  in  the  occupa- 
tion in  which  he  had  been  engaged,  or  in  other  similar  labor, 
the  amount  of  the  verdict,  $7,500,  does  not  show  that  the  jury 
was  influenced  by  prejudice  or  passion,  and  that  it  should  not  on 
that  ground  be  set  aside  as  excessive. 

11.  Plaintiff   not   being   guilty   of   contributory   negligence   that   barred 

recovery,  he  was  entitled  to  full  compensatory  damages,  as  this  suit 
was  not  prosecuted  under  any  statute  requiring  damages  to  be 
assessed  on  the  basis  of  comparative  negligence. 

12.  Recitals   in   defendant's   records,    made   by   its   agents   at  the   time, 

in  the  line  of  their  duty,  were  competent  evidence  against  the 
company. 

13.  Evidence  as  to   the  customary   dis^wsition  of  defendant's  cars  was 

clearly  adn>issil>le. 

Pickle,  Turner  &  Kennerly,  for  plaintiff. 
JouROLMON,  Welcker  &  Smitii,  for  defendant. 


appendix  g.  849 

Memorandum  Opinion  of  the  Court. 

Sanford,  Judge,  on  motion  for  new  trial : 

I  am  of  opinion  that  the  motion  for  a  new  trial  should  be 
overruled,  for  the  following  reasons : 

1.  The  rules  of  law  applicable  to  the  facts  of  this  case  under 
the  Safety  Appliance  Law  were,  I  think,  correctly  stated  in 
the  charge  to  the  jury. 

By  Section  2  of  the  Safety  Appliance  Act  of  ]March  2, 
1893,  it  was  made  unlawful  for  any  common  carrier  engaged 
in  interstate  commerce  by  railroad  to  haul  or  permit  to  be 
hauled  or  used  on  its  line  any  car  used  in  moving  interstate 
traffic  not  equipped  with  couplers  coupling  automatically  by 
impact.  By  Section  1  of  the  amendatory  Act  of  ]\Iarch  2, 
1903,  it  was  provided  that  the  provisions  and  requirements 
of  the  Act  of  1893,  relating  to  automatic  couplers,  "shall  be 
held  to  apply  to  all  trains,  locomotives,  tenders,  cars,  and 
similar  vehicles  used  on  any  railroad  engaged  in  interstate 
commerce  *  '*  *  and  to  all  other  locomotives,  tenders, 
cars,  and  similar  vehicles  used  in  connection  therewith." 

In  Johnson  v.  Southern  Pac.  Co.,  196  U.  S.,  1,  21,  it  was 
said  that  this  amendatory  Act  "is  affirmative  and  declaratory, 
and,  in  effect,  only  construed  and  applied  the  foniier  act;" 
and  in  Schlemmer  v.  Buffalo  Ry.,  205  U.  S.,  1,  10,  it  w^as  again 
said  that  the  amendatory  Act  in  the  opinion  of  the  Supreme 
Court  "indicates  the  intent  of  the  original  act." 

It  w^as  further  held  in  the  Johnson  case  that  a  dining  car 
regularly  engaged  in  making  interstate  journeys  was  equally 
under  the  control  of  Congress  under  the  safety-appliance 
law  when  waiting  for  the  train  to  be  made  up  for  another 
trip.  The  Chief  Justice,  in  delivering  the  opinion  of  the 
court,  said :  "It  was  being  regularly  used  in  the  movement  of 
interstate  commerce  and  so  within  the  law"  (p.  22).  In  the 
light  of  this  decision,  and  in  view  of  the  broad  language  used 
in  the  amendatory  Act,  I  think  it  clear  that  the  provision  as 
to  couplers  on  cars  used  on  the  line  of  an  interstate  carrier 
was  intended  to  apply  not  merely  to  those  cars  which  are 


850  FEDERAL  SAFETY  APPLIANCE  ACT. 

being  used  in  the  movement  of  interstate  traffic  at  a  given 
moment,  but  to  all  cars  hauled  or  used  on  its  line  that  are 
customarily  and  generally  employed  in  moving  interstate 
traffic,  or  in  connection  with  vehicles  used  in  moving  inter- 
state traffic,  and  that  a  car  regularly  used  in  moving  interstate 
traffic  or  in  connection  therewith,  is  subject  to  the  provisions 
of  the  Safety  Appliance  Act  in  reference  to  automatic 
couplers  when  used,  although  at  the  particular  time  it  is 
being  hauled  empty  or  not  in  connection  with  the  movement 
of  interstate  traffic.  This  view  is,  I  think,  supported  by  the 
case  of  Voelker  v.  Chicago  Ey.  Co.  (D.  C),  116  Fed.,  867,  873, 
the  language  used  in  this  opinion  being  approved  obiter  in 
United  States  v.  Southern  Pac.  Co.  (D.  C),  145  Fed.,  438; 
United  States  v.  St.  Louis  R.  Co.  (D.  C),  154  Fed.,  516; 
United  States  v.  Chicago  Ry.  Co.  (D.  C),  157  Fed.,  616;  and 
Chicago  Ry.  Co.  v.  United  States  (C.  C.  A.,  8th  Cir.),  168 
Fed.,  236;  and  Thornton's  Employers'  Liability  and  Safety 
Appliance  Acts,  Section  127,  page  162,  and  cases  cited. 

The  Safety  Appliance  Act  is  a  remedial  statute,  and  must 
be  so  construed  as  to  accomplish  the  intent  of  Congress. 
Johnson  v.  Southern  Pac.  Co.,  196  U.  S.,  1 ;  United  States  v. 
Central  Ry.  Co.  (D.  C),  167  Fed.,  893.  Its  provisions 
"should  not  be  taken  in  a  narrow  sense."  Schlemmer  v. 
Buffalo  Ry.  Co.,  205  U.  S.,  1,  10.  Nor  should  its  undoubted 
humanitarian  purpose  be  frittered  away  by  judicial  con- 
struction. United  States  v.  Chicago  Ry.  Co.  (D.  C),  149 
Fed.,  486. 

The  construction  of  the  Safety  Appliance  Act  which  makes 
it  apply,  so  far  as  the  provisions  for  automatic  couplers  are 
concerned,  to  all  cars  used  by  an  interstate  carrier  on  its  line 
in  the  movement  of  interstate  commerce  or  in  connection 
therewith,  either  specially  or  regularly,  is  in  accordance  with 
the  plain  intent  of  Congress,  as  indicated  by  the  act,  to  pro- 
tect the  lives  and  limbs  of  the  employees  of  interstate  carriers. 
A  different  construction,  exempting  from  the  operation  of  the 
act  cars  which,  although  regularly  used  in  interstate 
commerce,  were  not  being  so  used  at  the  particular  time, 


APPENDIX    G. 


851 


would  put  upon  the  employee  working  with  such  car  the 
practically  impossible  burden  of  ascertaining  whether  or  not 
a  given  car  was  in  fact  being  used  in  connection  with  the  haul- 
ing of  interstate  traffic  at  the  particular  time — that  is,  of 
ascertaining  the  character  of  its  load  and  that  of  the  other 
cars  in  the  train — in  order  to  determine  whether  or  not  in 
working  with  it  he  would  or  would  not  assume  the  risk  arising 
from  its  being  in  a  condition  which  did  not  comply  with  the 
Safety  Appliance  Act. 

I  therefore  conclude  that  under  the  terms  of  the  Safety 
Appliance  Act  and  its  amendment,  and  in  the  light  of  the 
decision  above  cited,  a  car  regularly  used  by  an  interstate 
carrier  on  its  interstate  line,  which  is  not  segregated  and  set 
apart  solely  for  local  traffic,  but  is  regularly  and  habitually 
used  in  the  movement  of  interstate  traffic  or  in  connection 
theremth,  is,  when  used  on  the  carrier's  line,  subject  to  the 
provisions  of  the  Safety  Appliance  Act  in  reference  to  the 
couplers  upon  it. 

So  construed,  and  as  applying  to  cars  which  are  the  regular 
and  habitual  instruments  used  in  interstate  commerce,  there 
can,  I  think,  be  no  serious  question  as  to  the  constitutionality 
of  the  Act,  especially  in  the  light  of  the  opinion  in  the  Johnson 
case,  in  which  the  Safety  Appliance  Act  was  applied  to  a 
dining  car  not  actually  being  used  at  the  time  in  interstate 
traffic,  but  regularly  used  for  that  purpose.  In  this  connec- 
tion, however,  it  may  be  noted  that  in  certain  cases  it  has 
■been  held  broadly,  that  the  Safety  Appliance  Act,  as  amended 
by  the  Act  of  1903,  applies  to  all  cars  used  by  an  interstate 
carrier  on  its  interstate  highway — a  construction  broad 
enough  to  include  even  a  train  of  cars  segregated  and  set 
apart  for  local  traffic  only — and  that  so  construed  the  act 
is  constitutional.  United  States  v.  Chicago  Ry.  Co.  (D.  C), 
149  Fed.,  486;  United  States  v.  Southern  Ry.  (D.  C),  164 
Fed.,  347 ;  and  opinion  of  Grosscup,  circuit  judge,  in  Wabash 
R.  Co.,  V.  United  States  (C.  C.  A.),  168  Fed.,  1,  8.  This,  how- 
ever, involves  a  more  difficult  question,  both  as  to  the  con- 
struction of  the  act  and  its  constitutionality,  which  is  not 


852  FEDERAL   SAFETY    APPLIANCE    ACT. 

necessarily  involved  in  the  present  case,  and  as  to  which  no 
opinion  is  expressed. 

2.  Under  the  facts  of  this  ease  there  was  no  doubt,  as  I 
view  it,  but  that  the  car  whose  coupler  was  defective  was  in 
regular  use  by  the  defendant  in  its  trains  for  hauling  inter- 
state traffic,  and  not  set  apart  for  purposes  of  local  traffic. 
Therefore,  in  my  opinion,  it  was  clearly  subject  to  the  pro- 
visions of  the  Safety  Appliance  Act,  and  as  the  coupler  was 
admittedly  defective  it  was  being  used  in  violation  of  the  law, 
unless  its  use  at  the  time  came,  as  is  claimed  by  the  defendant, 
within  an  exception  to  the  Safety  Appliance  Act  in  reference 
to  the  movement  of  a  car  for  repairs.  However,  under  the 
proof  in  this  case  it  appeared  that  the  car  in  question  had 
arrived  at  the  Coster  yards  of  the  defendant  in  a  defective 
condition  several  days  before  the  accident ;  that  it  had  not 
been  repaired  at  the  Coster  shops  where  it  could  have  been 
repaired,  but  had  been  hauled  away  from  this  repair  point 
en  route  to  the  repair  shops  at  Lenoir  City,  several  miles 
away,  for  the  purpose  of  being  there  repaired. 

I  think  it  clear,  under  the  authorities,  that  w^hen  the  car 
was  put  in  use  even  to  be  hauled  to  another  repair  shop  after 
it  had  been  for  some  time  at  a  repair  shop  where  it  could  have 
been  repaired  it  M'as  being  hauled  in  this  defective  condition 
in  violation  of  the  Safety  Appliance  Act.  United  States  v. 
Chicago  Ry.  Co.  (D.  C),  149  Fed.,  468;  United  States  v 
St.  Louis  R.  Co.  (D.  C),  154  Fed.,  516;  United  States  v.  Le- 
high Valley  R.  Co.  (D.  C),  162  Fed.,  410,  412;  United  States 
V.  Philadelphia  R.  R.  (D.  C),  162  Fed.,  405,  409;  Chicago 
Ry.  V.  United  States  (C.  C.  A.,  8th  Cir.),  165  Fed.,  423: 
United  States  v.  Atchison  Ry.  (D.  C),  167  Fed.,  696;  United 
States  V.  Southern  Pac.  Co.  (D.  C),  167  Fed.,  699;  United 
States  V.  Southern  Pac.  Co.  (D.  C,  No.  24,  1909). 

Having  undertaken  to  haul  the  car  away  from  a  repair 
point,  it  obviously  remained,  I  think,  within  the  provisions  of 
the  act,  even  although  tlu;  effort  was  afterwards  made  to 
detach  the  car  and  return  it  to  tlie  Knoxville  yard  for  repairs. 
Having  once  moved   it  away   Irom  the  Coster  yard,  when  it 


APPENDIX    G. 


853 


should  have  been  repaired,  it  was  thereafter  moved,  within 
the  principle  of  the  foregoing  cases,  at  the  risk  of  the  carriers 
so  far  as  the  provisions  of  the  Safety  Appliance  Act  were 
concerned.  Nor  does  the  case  come  ^\dthin  the  exception 
recognized  in  the  opinion  of  the  circuit  court  of  appeals  for 
this  circuit  in  United  States  v.  Ill  Cent.  Ry.,  170  Fed.,  542, 
as  the  proof  entirely  fails  to  show,  either  that  the  defect  was 
one  which  occurred  during  transit,  or  that  the  utmost  dili- 
gence was  used  on  discovering  and  correcting  the  defect ;  the 
proof  on  the  contrary  showing  great  and  negligent  delay 
in  repairing  the  coupler  after  the  defect  has  been  discovered. 

3.  It  results  that  in  my  opinion  there  Avas  no  error  in  the 
charge  in  respect  to  the  construction  and  effect  of  the  safety 
appliance  laws  or  in  the  refusal  to  charge  the  jury  as  re- 
quested in  the  special  requests  submitted  by  the  defendant. 

4.  I  am  further  of  the  opinion  that  under  the  doctrine  of 
Voelker  v.  Chicago  Ry.  Co.  (C.  C),  116  Fed.,  867,  875; 
Chicago  Ry.  Co.  v.  Voelker  (C.  C.  A.,  8th  Cir.),  129  Fed., 
523,  550;  Chicago  Ry.  Co.  v.  King  (C.  C.  A.,  7th  Cir.),  169 
Fed.,  372;  and  the  definition  of  proximate  cause  given  in 
Milwaukee  Ry.  Co.  v.  Kellog,  94  U.  S.,  469,  475 ;  Washington 
R.  R.  V.  Huckey,  166  U.  S.,  521,  527;  Atchison  Ry.  Co.  v. 
Calhoun,  213  U.  S.,  1,  7;  and  Stone  v.  Railroad,  171  Mass., 
536,  there  was  evidence  to  go  to  the  jury  as  to  whether  the 
defective  condition  of  the  coupler  was  a  proximate  cause  of 
the  injury  to  Snyder ;  and  that  under  the  doctrine  of  Narra- 
more  v.  Ry.  Co.  (C.  C.  A.,  6th  Cir.),  96  Fed.,  298,  304,  and  of 
Chicago  Ry.  Co.  v.  King,  svpra,  the  question  was  properly  left 
to  the  jury  to  determine  whether,  under  all  the  circumstances 
of  the  case,  the  plaintiff  w^as  guilty  of  contributory  negligence 
which  barred  his  recovery;  and  that  therefore  the  defendant's 
motion  for  peremptory  instructions  was  properly  overruled. 
See  also  Toledo  R.  Co.  v.  Bartley  (C.  C.  A.,  6th  Cir.),  172 
Fed.,  82. 

5.  Furthermore,  under  the  proof  as  to  the  temporary  pur- 
pose for  which  the  plaintiff  went  between  the  cars,  the  cus- 
tomary method  of  doing  such  work,  the  character  of  lookout 


854 


FEDERAL    SAFETY    APPLIANCE    ACT. 


established  with  the  crew  available,  the  time  of  day,  the 
necessity  of  moving  out  the  cars  as  directed,  and  all  the  cir- 
cumstances of  the  case,  I  do  not  think  that  the  verdict  of  the 
jury,  involving  in  effect  a  finding  both  that  the  defective 
coupling  was  a  proximate  cause  of  the  injury  and  that  the 
plaintiff  was  not  guilty  of  contributory  negligence  was  against 
the  clear  and  decided  weight  of  the  evidence,  and  hence  I  am 
of  opinion  that  it  should  not  be  set  aside.  ]\It.  Adams  Ry.  Co. 
V.  Lowery  (C.  C.  A.,  6th  Cir.),  74  Fed.,  463,  472;  Felton  v. 
Spire,  75  Fed.,  576  (C.  C.  A.,  6th  Cir.).  Especially  is  this 
true  as  the  court  is  always  more  reluctant  to  set  aside  a  verdict 
when  it  is  against  the  party  having  the  burden  of  proof 
(Cunningham  v.  J\tagoon,  18  Pick.  Mass.,  13)  as  the  de- 
fendant had  in  this  case  upon  the  material  question  of  the 
contributory  negligence  of  the  plaintiff. 

6.  I  am  likewise  of  the  opinion  that  in  view  of  the  serious 
character  of  the  injuries,  involving  great  suffering  and  loss 
of  time  and  the  permanent  disability  of  the  plaintiff,  disabling 
him  from  earning  a  livelihood  in  the  occupation  in  which  he 
had  been  engaged,  or  in  other  similar  labor,  the  amount  of 
the  verdict  does  not  show  that  the  jury  was  influenced  by 
prejudice  or  passion,  and  that  it  should  not  on  that  ground 
be  set  aside  as  excessive.  Clearly  if  the  plaintiff  was  not 
guilty  of  contributory  negligence  that  barred  recovery,  he 
was  entitled  to  full  compensatory  damages,  as  this  suit  was 
not  prosecuted  under  any  statute  requiring  damages  to  be 
assessed  on  the  basis  of  comparative  negligence. 

7.  The  recitals  in  the  company's  records,  made  by  its 
agents  at  the  time,  in  the  line  of  their  duty,  were,  I  think, 
competent  evidence  against  the  company  under  the  authority 
of  Vicksburg  R.  R.  Co.  v.  Putnam,  118  U.  S.,  545,  554; 
Chateaugay  v.  Blake,  144  U.  S.,  476,  483 ;  Missouri  Ry.  Co.  v. 
Elliott  (C.  C.  A.,  8th  Cir.),  102  Fed.,  96;  Bank  v.  Bank,  108 
Tenn.,  374,  380;  6  Thompson  on  Corporations,  section  7728; 
1  Am.  &  Eng.  Enc.  Law,  2d  ed.,  718,  note  as  to  "Entries  in  the 
Jiooks  of  a  Party,"  and  16  Cyc,  946  as  to  "memoranda." 


APPENDIX    G.  855 

The  evidence  as  to  the  customary  disposition  of  defendant 's 
cars  was  also,  I  think,  clearly  admissible. 

An  order  will  accordingly  be  entered  overruling  the  motion 
for  a  new  trial. 


ERIE  RAILROAD  COMPANY,  PLAINTIFF  IN  ERROR, 

V. 

BLANCHE    RUSSELL,    ADMINISTRATRIX,    DEFEND- 
ANT IN  ERROR. 

(United  States  Circuit  Court  of  Appeals,  Second  Circuit.) 


Writ  of  error  to  review  a  judgment  of  the  Circuit  Court,  Southern  Dis- 
trict of  New  York,  in  favor  of  the  plaintiff  in  an  action  to  recover 
damages  for  injuries  resulting  in  the  death  of  the  plaintiff's 
intestate,  Harry  Russell,  while  employed  by  the  defendant  railroad 
company. 


Decided  December  2,  1910. 


1.  It  appears  that  the  defective  car  in  this  case  was  not  being  liauled  at 

the  time  of  the  accident,  but  was  standing  upon  the  switch  track 
for  the  insertion  of  the  knuckle  in  the  coupling  apjmratus;  Held, 
That  the  contention  of  the  carrier  that  such  car  was  not  being  used 
within  the  contemplation  of  the  Federal  Safety  Appliance  Acts  is 
not   sustained. 

2.  Though   the   car   itself   does   not  appear   to   have   been   used   in   any 

interstate  business  at  the  time  of  the  accident,  which  occurred 
■during  switching  operations  and  not  during  either  the  regular  west- 
ern or  eastern  movement  of  the  freight  trains,  yet  the  test  of  the 
application  of  the  Federal  Safety  Appliance  Acts  is  the  train 
rather  than  the  car,  and  the  evidence  warrants  the  finding  in  this 
case  that  the  trains  in  which  this  car  moved  into  and  out  of  Port 
Jervis,  N.  Y.,  included  other  cars  loaded  with  interstate  shipments. 
Upon  these  facts;  Held,  That  the  Federal  Safety  Appliance  Acts 
apply. 

3.  The  switchman  injured  in  this  case  went  upon  the  track  to  adjust 

a  defective  coupler  in  a  car  when,  without  any  apparent  cause,  three 
other  cars  which  were  standing  on  the  same  switch,  which  switch 
had  a  slight  grade,  moved  silently  down  upon  him,  inflicting  the 
injuries  complained  of;  Held,  That  the  defective  coupler  was  a 
proximate   cause  of  the  accident. 


856  FEDERAL  SAPETY  APPLIANCE  ACT. 

4.  To  hold  that  the  injured  switchman  was,  as  a  matter  of  law,  guilty 

of  contributory  negligence,  requires  the  assumption  that  the  cars 
wMch  moved  doAA-n  and  against  the  switchman  moved  because  h.-*, 
had  failed  in  his  duty  to  break  or  block  them.  But  this  assumption 
cannot  be  made.  The  cars  may  have  been  properly  blocked  and  the 
blocks  loosened  by  the  impact  with  the  car  in  question  shortly 
before  the  accident.  The  question  of  contributory  negligence  was 
one  for  the  jury. 

5.  The  remaining  questions  raised  by  the  carrier  disclose  no  prejudicial 

error,  and  the  judgment  of  the  circuit  court  in  favor  of  the  plaintiff 
is  affirmed: 

Stetson,  Jennings  &  Russell,  for  plaintiff  in  error. 

John  "W.  Lyon  and  George  A.  Clement,  for  defendant  in 
error. 

Before  Lacombe,  Ward  and  Noyes,  Circuit  Judges. 

STATEMENT    OF    FACTS. 

There  was  evidence  in  the  case  sufficient  to  warrant  the 
jury  in  finding  the  following  facts  which  are  especially 
relevant  to  the  questions  considered  in  the  opinion. 

The  defendant  railroad  company  is  engaged  in  interstate 
commerce  and  owns  a  railroad  extending  from  Port  Jervis, 
N.  Y.,  to  Newburgh,  N.  Y.,  and  also  running  into  other  states. 
Port  Jervis  is  two  or  three  miles  east  of  the  state  line  be- 
tween New  York  and  Pennsylvania. 

The  defendant  operates  a  local  freight  train  between  New- 
burgh and  Port  Jervis  which,  when  running  westerly,  carries 
freight  to  stations  on  the  road  and  picks  up  freight  going  to 
all  points  west,  including  points  in  other  states.  On  the 
easterly  trip  western  freight  is  carried  to  local  points  and  local 
freight  is  picked  up  for  eastern  points.  On  the  afternoon  of 
June  21,  1907,  the  car  in  question  in  this  ease  was  brought 
into  Port  Jervis  in  this  train  billed  to  the  repair  shop  there. 
It  had  a  defective  coupler;  the  knuckle  being  gone.  It  was 
empty  and  had  been  picked  up  at  Greycourt,  a  station  between 
Port  Jervis  and  Newburgh.  This  train  on  said  day  carried 
freight  going  west  of  Port  Jervis  and  to  different  states  and 
one  of  the  cars  bore  the  initials  of  the  Boston  and  ]\Iaine 


APPENDIX    G.  857 

Railroad.  There  was  another  car  in  the  train  which  was  also 
in  a  crippled  condition.  The  train,  including  the  crippled 
cars,  was  left  standing  on  a  s^dtch  in  the  Port  Jervis  freight 
yard. 

Russell,  the  plaintiff's  intestate,  was  one  of  the  night-switch- 
ing crew  in  the  yard.  On  this  afternoon  this  crew  had  begun 
work  drilling  out  and  smtching  the  cars  from  the  different 
trains  which  had  come  into  the  yard  from  the  east  and  west. 
Before  supper  three  cars  had  been  placed  on  the  No.  6  switch 
in  the  yard  and  left  standing  there.  This  switch  had  a  slight 
grade.  After  supper  the  s\\atching  crew  continued  work  and 
after  some  time  ran  the  car  in  question  attached  to  other  cars 
upon  said  No.  6  switch.  The  intention  of  the  svatching  crew 
was  to  repair  the  defective  coupler  and  after  repairing  it  to 
couple  the  train  containing  this  car  to  the  three  cars  aforesaid 
which  had  previously  been  left  upon  the  switch.  In  backing 
up  the  train  this  car  came  in  contact  with  the  other  three 
cars,  but  was  subsequently  pulled  away  from  them  some  five 
or  six  feet.  The  switching  crew  then  started  to  look  for  a 
knuckle  with  which  to  repair  the  defective  coupler.  Knuckles 
were  kept  in  various  places  in  the  yard  and  the  switchmen 
were  accustomed  to  replace  those  found  missing.  Russell,  the 
plaintiff's  intestate,  was  the  first  to  find  one  and  he  went  in 
between  the  cars  and  attempted  to  adjust  it  in  the  coupling 
apparatus,  but  the  pin  would  not  fit  and  one  of  the  other  men 
went  to  look  for  another  pin.  Russell  was  holding  the  knuckle 
in  place  with  his  back  to  said  three  standing  cars,  when, 
without  any  apparent  cause,  they  moved  silently  dowa.  and 
caught  and  crushed  him,  inflicting  the  injuries  from  which 
he  died.  The  car  in  question  was  taken  the  next  day  on  the 
easterly  trip  of  said  local  freight  train  and  hauled  to 
Goshen,  N.  Y. 

OPINION   OP   THE    COURT. 

Notes,  Circuit  Judge  (after  making  the  foregoing  statement)  : 
The  first  question  in  the  case  is  whether  the  acts  of  the  de- 
fendant constituted  a  violation  of  the  Federal  Safety  Ap- 


858  FEDERAL  SAFETY  APPLIANCE  ACT. 

pliance  Act  (Act  of  March  2,  1893,  as  amended  March  2, 
1903),  the  relevant  sections  of  which  are  printed  in  the 
footnote.® 

The  first  phase  of  this  question  is  whether  the  car  with  the 
defective  coupler  was,  at  the  time  of  the  accident,  in  use 
within  the  meaning  of  the  amended  act. 

It  is  pointed  out  that  the  car  was  not  being  hauled  at  the 
time  of  the  accident,  but  was  standing  upon  a  switch  track 
for  the  insertion  of  the  knuckle  in  the  coupling  apparatus, 
and  it  is  contended  that  it  was  not  then  being  used  within 
the  contemplation  of  the  statute. 

"We  think  upon  the  authority  of  Johnson  v.  Southern  Pacific 
Co.  (196  U.  S.  ]),  that  this  contention  is  not  well  founded. 
The  car  with  the  defective  coupler  was  not  withdra^^Ti  from 
use.  Although  billed  to  the  repair  shop,  it  was  not  sent 
there,  nor  was  it  sent  to  any  place  used  especially  for  making 
repairs.  The  insertion  of  the  knuckle  was  a  simple  matter. 
The  car  was  stopped  only  temporarily,  and  it  was  intended 
to  couple  it  to  the  other  cars  as  soon  as  repaired.  These  facts 
seem  clearly  to  distinguish  this  case  from  those  cases  cited 
in  the  defendant's  brief,  where  accidents  occurred  when  cars 
had  been  sent  to  repair  shops  or  placed  upon  dead  tracks 
used  for  repair  purposes. 

The  second  phase  of  the  question  of  the  application  of  the 
act  is  whether  the  car  at  the  time  of  the  accident  was  em- 
ployed in  interstate  commerce. 


a  Act  of  1893,  sec.  2.  That  *  *  *  it  shall  ho  unla'W'ful  for  any 
such  common  caiTior  to  haul  or  permit  to  he  hauled  or  used  on  its  lines 
any  car  used  in  moving  interstate  trallic  not  equipped  with  couplers 
coupling  automatically  by  impact,  and  which  can  be  uncoupled  without 
the  necessity  of  men  going  between  the  ends  of  the  cars. 

Amendment  of  1!>03,  sec.  1  ''  *  *.  The  provisions  of  *  *  * 
(the  Safety  Appliance  Act)  *  *  *  shall  apply  in  all  cases,  whether 
or  not  the  couplers  brought  togetlier  are  of  the  same  kind,  make,  or 
type,  and  the  provisions  and  requirements  hereof  and  of  said  acts  relat- 
ing to  train  brakc'S,  automatic  couplers,  grab-irons,  and  the  height  of 
drawbars  shall  be  held  to  apply  to  all  trains,  locomotives,  tenders,  cars, 
and  similar  vehicles  used  on  any  railroad  engaged  in  interstate  com- 
merce.    ♦     •     * 


APPENDIX    G.  859 

The  ear  itself  does  not  appear  to  have  been  used  in  any 
interstate  business  at  the  time  in  question.  It  was  hauled 
empty  from  a  New  York  point  to  Port  Jervis  in  the  same 
state,  and  the  following  day  in  like  condition  was  hauled  to 
another  New  York  point.  But  the  test  of  the  application  of 
the  statute  is  the  train  rather  than  the  car,  and  we  are  of  the 
opinion  that  there  was  evidence  warranting  a  finding  that  the 
train  in  which  his  car  moved  into  Port  Jervis  included  other 
cars  loaded  with  interstate  shipments,  and  that  the  train  in 
which  it  moved  out  of  Port  Jervis  was  of  a  similar  character. 
Upon  these  facts  it  is  held  that  the  Safety  Appliance  Act 
applies.  United  States  v.  International,  etc.,  R.  Co.  (174 
Fed.,  638)  ;  Chicago,  etc.,  R.  Co.  v.  United  States  (165  Fed., 
423) ;  United  States  v.  Wheeling,  etc.,  R.  Co.  (167  Fed.,  198)  ; 
United  States  v.  Erie  R.  Co.  (166  Fed.,  352). 

The  fact  that  the  accident  occurred  during  switching 
operations  and  not  during  either  the  regular  western  or 
eastern  movement  of  the  freight  trains  does  not  affect  the 
application  of  the  statute.  Johnson  v.  Southern  Pacific  Co., 
supra;  Wabash  R.  Co.  v.  United  States  (168  Fed.,  1).  Cer- 
tainly if  the  car  came  into  Port  Jervis  in  the  afternoon  in  an 
interstate  train  and  moved  out  of  Port  Jervis  the  next  morning 
in  another  interstate  train  the  character  of  its  use  was  not 
changed  during  the  switching  operations  at  night.  Rosney  v. 
Erie  R.  Co.  (135  Fed.,  311)  is  distinguished,  from  the  fact 
that  in  that  case  there  was  no  proof  of  use  in  interstate 
commerce. 

The  second  question  of  importance  in  the  ease  is  whether 
the  trial  court  properly  submitted  to  the  jury  the  question 
whether  the  presence  of  the  defective  coupler  was  a  proximate 
cause  of  the  accident. 

It  is  urged  with  much  force  that  that  which  caused  the 
injury  to  the  plaintiff's  intestate  was  the  unexpected  move- 
ment of  the  three  cars — an  act  unrelated  to  and  independent 
of  the  act  of  repairing  the  coupler.  Indeed,  were  the  question 
to  be  decided  free  of  authority,  a  majority  of  the  court  would 
have  difficulty  in  holding  that  the  repair  of  the  coupler  was 


860  FEDERAL  SAFETY  APPLIANCE  ACT. 

a  part  of  a  coupling  operation,  and  bore  such  a  relation  to 
the  impact  of  the  ears  that  the  necessity  for  such  repairs  was 
an  efficient  cause  of  the  accident. 

But  still  the  reason  why  Russell  went  to  the  place  where  he 
was  injured  was  the  defective  coupler,  and  if  he  had  not 
gone  there  the  accident  would  not  have  occurred.  Moreover, 
it  appears  that  it  was  intended  to  couple  the  car  with  the 
defective  coupler  to  the  standing  cars  as  soon  as  the  coupler 
should  be  repaired.  This  being  true,  and  in  view  of  the  de- 
sirability of  uniformity  in  the  decisions  of  the  courts  of  the 
different  circuits  in  interpreting  this  act,  we  feel  it  our  duty 
to  follow  the  decision  of  the  Circuit  Court  of  Appeals  for 
the  Eighth  Circuit  in  Chicago,  etc.,  R.  Co.  v.  Voelker  (129 
Fed.,  522).  The  facts  in  that  ease  are  very  similar  to  those 
appearing  here.  The  person  injured  Avent  upon  the  track 
to  adjust  a  defective  coupler  in  a  car  when  without  warning, 
another  car  was  shoved  dowTi  upon  him,  inflicting  the  injuries 
complained  of.  It  was  held  that  the  defective  coupler  was 
a  proximate  cause  of  the  accident. 

In  Chicago  Junction  R.  Co.  t-.  King  (169  Fed.,  372),  the 
facts  even  more  closely  resembled  those  appearing  here,  and  a 
judgment  for  a  person  injured  by  reason  of  a  defective 
coupler  was  affirmed,  although  the  question  of  proximate 
cause  does  not  appear  to  have  been  particularly  considered. 
See  also  the  decision  of  this  court  in  Donegan  v.  Baltimore, 
etc.,  R.  Co.  (165  Fed.,  869). 

The  third  question  in  the  case  is  whether  the  plaintiff's 
intestate  was,  as  a  matter  of  law,  guilty  of  contributory 
negligence. 

An  affirmative  answer  to  this  question  requires  the  as- 
sumption that  tlie  cars  which  moved  down  and  against  Russell 
moved  because  lie  had  failed  in  his  duty  to  brake  or  block 
them.  But  this  assumption  cannot  be  made.  The  cars  may 
have  been  properly  blocked  and  the  blocks  loosened  by  the 
impact  with  the  car  in  question  shortly  before  the  accident. 
The  question  of  contributory  negligence  was  one  for  the  jury. 


APPENDIX    G,  861 

The  remaining  questions  raised  by  the  defendant  disclose 
no  prejudicial  error. 

The  judgment  of  the  circuit  court  is  affirmed. 


UNITED  STATES  v.  BALTIMORE  &  OHIO  RAILROAD 

CO.AIPANY. 

(In  the  Uictrict  Court  of  the  United  States  for  the  District  of  Indiana.) 


Decided  Decemier  13,   1910. 


(Syllabus.) 

1.  If   the   uncoupling  chain   on   a   car   coupler   is    so   long   that   in   the 

ordinary  usage  of  the  same  cliain  will  become  kinked  in  the  head 
of  the  coupler  in  such  a  manner  as  to  necessitate  a  man  or  men 
going  between  the  ends  of  the  cars  to  couple  or  uncouple,  then 
such  coupler  is  not  equipped  in  compliance  with  the  Federal  Safety 
Appliance  Act. 

2.  Two  witnesses  for  the  plaintilf  having  testified  to  the  fact  that  a  grab 

iron  was  missing  from  a  car  at  a  certain  time,  and  one  witness 
for  the  defendant  having  testified  that  at  a  subsequent  time  the 
same  car  had  such  a  grab  iixjn,  the  jury  were  instructed  that  the 
statements  of  said  witnesses  could  be  reconciled  and  that  it  was 
their  duty  to  reconcile  them  and  to  find  that  no  witness  had  testi- 
fied falsely  as  to  the  matter. 

Charles  W.  Miller,  United  States  attorney;  Clarence  W. 
Nichols,  assistant  United  States  attorneif ;  and  Roscoe  F. 
Walter,  special  assistant  United  States  attorney,  for  plaintiff, 

Samuel  Miller,  for  defendant. 

INSTRUCTIONS    TO    THE   JURY. 

Anderson,  District  Judge  (orally)  : 

Gentlemen  of  the  jury,  this  is  a  civil  action,  and  in  this 
court  you  are  the  judges  of  the  weight  of  the  evidence  and 
of  the  credibility  of  the  mtnesses;  you  are  to  determine  the 
facts  proved,  but  you  are  bound  by  the  law  as  it  is  given  to 
you  by  the  court. 


S62  FEDERAL  SAFETY  APPLIANCE  ACT. 

The  question  you  have  to  try  is  within  a  very  narrow  com- 
pass. In  the  first  place,  you  have  only  to  consider,  as  far  as 
your  deliberations  are  concerned,  but  three  of  the  counts  or 
paragraphs  of  this  complaint,  i.  e.,  counts  2,  5,  and  7.  The 
defendant  concedes  that  the  Government  has  made  its  case 
as  to  counts  1,  3,  4,  6,  and  8,  and  only  raises  a  question  as  to 
counts  2,  5,  and  7. 

I  will  call  your  attention  to  these  counts  2,  5,  and  7,  the 
ones  that  you  will  have  to  consider.  In  substance  count  2 
alleges  that  in  violation  of  the  Act  of  Congress  known  as  the 
Safety  Appliance  Act,  passed  at  a  particular  time  and 
amended,  said  defendant  on  or  about  November  19,  1908, 
hauled  on  its  line  of  railroad,  Chicago,  Lake  Shore  &  Eastern, 
car  No.  10364  consigned  to  a  point  within  the  state  of 
Pennsylvania.  The  complaint  further  alleges  that  on  or 
about  said  date  the  defendant  hauled  said  car  from  Garrett, 
in  the  state  of  Indiana,  in  an  easterly  direction,  within  the 
jurisdiction  of  this  court.  As  to  these  facts  there  is  no  dis- 
pute. The  complaint  then  alleges  that  when  the  car  was  thus 
being  hauled  "the  coupling  and  uncoupling  apparatus  on 
the  'A'  end  of  said  car  was  out  of  repair  and  inoperative,  the 
uncoupling  chain  being  kinked  on  said  end  of  said  car,  thus 
necessitating  a  man  or  men  going  between  the  ends  of  the  cars 
to  couple  or  uncouple  them,  and  when  said  car  was  not 
equipped  with  couplers  coupling  automatically  by  impact," 
etc.,  alleging  that  this  was  done  in  violation  of  the  statute. 

Count  5,  after  alleging  the  statute,  proceeds  to  aver  that 
the  defendant  on  or  about  November  19,  1908,  ''hauled  on 
its  line  of  railroad  one  car,  to-wit,  its  own,  No.  41861,  said 
car  being  one  regularly  used  in  the  movement  of  interstate 
traffic  and  at  the  time  of  said  violation  hauled  in  train  con- 
taining interstate  traffic  ;  one  car  in  said  train,  to-wit,  Chicago, 
Milwaukee  &  St.  Paul,  No.  32514,  containing  interstate  traffic, 
to-wit,  flour  consigned  to  a  point  within  the  state  of  Virginia." 
You  will  have  no  trouble  about  any  of  these  questions.  There 
is  no  dispute  about  them. 


APPENDIX    G.  863 

Count  5  further  alleges  "that  on  or  about  said  date  de- 
fendant hauled  said  ear,  its  own,  No.  41861,  as  aforesaid,  over 
its  line  of  railroad  from  Garrett,  in  the  state  of  Indiana,  in 
an  easterly  direction,  within  the  jurisdiction  of  this  court." 
There  is  no  dispute  about  that  fact. 

Count  5  then  alleges  that  while  the  car  was  thus  being 
hauled  "the  coupling  and  uncoupling  apparatus  on  the  'B' 
end  of  said  car  was  out  of  repair  and  inoperative,  the  top 
clevis  to  the  uncoupling  chain  being  missing  on  said  end  of 
said  car. ' '  Now,  the  only  question  for  you  to  determine  under 
count  5  is  whether  that  top  clevis  was  missing. 

Count  7,  after  averring  that  the  defendant  hauled  over  its 
line  Mobile  &  Ohio  car  No.  8721,  used  in  the  movement  of 
interstate  traffic,  to-wit,  coal,  consigned  to  a  point  in  Illinois, 
and  that  the  defendant  hauled  the  said  car  from  Garrett  in 
a  westerly  direction,  avers  that  the  grab-iron  or  handhold  on 
the  left-hand  side  of  the  "A"  end  of  the  car  was  missing; 
and  that  is  the  only  question  that  you  have  to  determine  on 
that  count. 

So  that  the  only  question  under  count  2  is:  Was  the 
coupling  defective  by  reason  of  the  kinked  chain,  as  averred  ? 
Under  count  5 :  "Was  the  top  clevis  of  the  uncoupling  chain 
missing  on  that  car?  And  under  count  7  the  only  question 
for  you  to  determine  is :  Was  the  grab-iron,  as  averred, 
missing  ? 

The  statute,  section  2,  provides  that  after  a  certain  date : 
"It  shall  be  unlawful  for  any  such  common  carrier  to  haul,  or 
permit  to  be  hauled  or  used  on  its  line,  any  car  used  in 
moving  interstate  traffic,  not  equipped  with  couplers  coupling 
automatically  by  impact,  and  which  can  be  uncoupled  without 
the  necessity  of  men  going  between  the  ends  of  the  cai's ; ' ' 
and  as  to  the  grab-irons,  from  and  after  the  same  date:  "It 
shall  be  unlawful  for  any  railroad  company  to  use  any  car 
in  interstate  commerce  that  is  not  provided  with  secure  grab- 
irons  or  handholds  in  the  ends  and  sides  of  each  car  for 
greater  security  to  men  in  coupling  and  uncoupling  cars. ' ' 


864:  FEDERAL  SAFETY  APPLIANCE  ACT, 

These  two  sections  cover  the  three  counts  that  you  will 
have  to  consider.  The  first  section  that  I  read  to  you  covers 
the  first  two,  and  the  second  section  covers  the  last  count; 
that  is,  count  7. 

Now,  as  I  have  said,  there  is  not  any  question  about  these 
cars  being  used  in  interstate  commerce.  There  is  not  any 
question  about  the  railroad  company  being  engaged  in  inter- 
state commerce.  The  only  questions  for  you  to  determine  are, 
as  I  have  indicated,  as  to  the  defective  couplers  under  counts 
2  and  5  and  the  missing  grab-iron  under  count  7. 

Now,  gentlemen  of  the  jury,  as  I  have  said,  you  are  the 
judges  of  the  weight  of  the  evidence  and  the  credibility  of 
the  witnesses.  You  are  to  determine  what  the  facts  proved 
are.  You  are  bound  by  the  law  as  it  is  given  to  you  by  the 
court.  This  is  a  civil  action.  Before  the  Government  can  re- 
cover it  must  establish  all  the  material  allegations  of  the 
counts  by  a  fair  preponderance  of  the  evidence.  By  a  fair 
preponderance  of  the  evidence  is  meant  the  greatest  weight 
of  the  evidence ;  not  necessarily  a  greater  number  of  witnesses. 
In  determining  the  weight  which  you  will  give  to  the  testi- 
mony of  any  witness  who  has  appeared  before  you,  you  will 
take  into  consideration  his  intelligence  or  want  of  intelli- 
gence, his  opportunity  to  know  the  facts  about  which  he 
testifies,  and  his  interest,  if  any,  in  the  result  of  the  suit ;  and, 
having  taken  these  things  into  consideration,  it  is  for  you 
to  determine  which  witness  you  will  believe  and  which  wit- 
ness you  will  not  believe. 

If  you  find  for  the  plaintiff  on  the  three  counts  that  are  in 
issue,  then  your  verdict  should  be:  We,  the  jury,  find  for 
the  plaintiff,  which  will  cover  the  whole  eight  counts.  If 
you  find  that  the  Government  has  not  by  a  fair  preponderance 
of  the  evidence  sustained  either  counts  2,  5,  or  7,  then  your 
verdict  should  be :  We,  the  jury,  find  for  the  plaintiff  on  the 
five  counts  I  have  spoken  about,  as  to  which  there  is  no  dis- 
pute, namely,  counts  1,  3,  4,  6,  and  8,  and  such  others  as  you 
find  the  Government  has  established,  or  find  in  favor  of  the 


APPENDIX    G.  865 

defendant,  on  such  of  counts  2,  5,  or  7,  as  you  believe  the 
Government  has  failed  to  establish. 

Now,  gentlemen,  I  have  said  to  you  that  you  are  the  exclu- 
sive judges  of  the  facts  proved  and  of  the  credibility  of  the 
witnesses,  but  on  account  of  the  number  of  counts  here,  and 
on  account  of  the  questions  presented  here,  about  which  there 
is  no  dispute,  I  think  it  is  proper  that  I  should  explain  to 
you  what  I  think  about  the  evidence  as  to  these  counts  2,  5, 
and  7,  explaining  to  you  that  you  are  not  bound  by  anything 
I  may  say  as  to  questions  of  fact. 

You  will  notice  that  the  first  count  about  which  there  is  any 
dispute,  count  2,  is  the  one  which  alleges  that  there  was  a 
kinked  chain.  You  will  recall  the  testimony  in  regard  to  that. 
The  Government's  witness  says  that  he  saw  that  chain  kinked; 
that  he  undertook  to  manipulate  that  brake  and  found  it  was 
impossible  because  of  the  kink.  On  the  other  hand,  one  wit- 
ness for  the  defendant,  as  I  recall,  testified  that  the  chain 
was  too  long,  and  it  did  kink,  but  that  he  succeeded  in  pulling 
it  out.  Now,  it  is  not  difficult  for  a  person  who  is  used  to 
weighing  evidence  to  determine  where  the  truth  lies  there, 
and  you  do  not  have  to  impute  perjury  to  anybody.  The 
witnesses  for  the  railroad,  themselves,  testified  that  the  chain 
kinked  because  it  was  too  long,  which,  to  my  mind,  is  evidence 
sufficient  to  sustain  the  verdict  on  that  count — to  sustain  a 
finding  that  the  coupling  was  defective,  and  was  not  such  a 
coupling  as  would  uncouple  by  this  appliance  without  the 
necessity  of  a  man  going  in  between  the  cars.  But  that 
question  is  for  you  to  decide.  You  may  conclude  to  believe 
the  witnesses  for  the  defendant  and  disbelieve  the  witnesses 
for  the  Government,  if  you  see  fit  to  do  so,  or  if  in  your 
judgment  it  is  your  duty  to  do  so,  then  your  verdict  should 
be  for  the  defendant  on  that  count.  That,  of  course,  depends 
simply  on  the  question  which  witnesses  you  believe  and  which 
you  will  not  believe. 

When  it  comes  to  the  clevis  matter  alleged  in  count  5,  I 
will  call  your  attention  to  the  fact  that  the  averment  in 


866  FEDERAL  SAFETY  APPLIANCE  ACT. 

count  5  is  that  the  clevis  was  gone,  was  missing,  and  two 
Avitnesses  for  the  Government  testified  to  that  fact.  Now, 
the  testimony  of  the  witness  on  the  part  of  the  defendant 
was  that  he  supplied  a  bolt  in  the  clevis.  That  does  not  meet 
the  case  of  the  Government  at  all,  in  my  judgment.  It  is 
for  you  to  decide. 

Next,  as  to  the  missing  grab-iron.  If  I  understand  the 
testimony,  the  two  witnesses  for  the  Government  testified 
positively  that  this  grab-iron  was  gone,  was  missing ;  that  there 
was  no  grab-iron  when  it  was  moved  over  the  line  from  the 
yards  in  interstate  commerce.  The  only  testimony,  as  I 
understand  it — I  may  be  mistaken  about  that — on  the  part 
of  the  defendant  is  that  at  a  subsequent  time,  when  some 
witness  for  the  railroad  company  examined  this  ear,  it  had 
a  grab-iron.  Of  course,  these  two  statements  can  be  entirely 
reconciled,  and  it  is  your  duty  to  reconcile  them  and,  in  that 
event,  to  find  that  no  mtness  has  testified  falsely  about  it. 
It  may  be  that  there  was  no  grab-iron  on  the  car  when  it  left 
Garrett  and  that  there  was  a  grabiron  on  it  at  the  time  this 
witness  testified  he  saw  it. 

On  account  of  the  number  of  counts  and  the  possibility  of 
some  confusion  about  them,  I  thought  it  was  my  duty  to 
explain  to  you  just  what  the  situation  is  as  to  these  three 
counts,  reminding  you  again  that  it  is  for  you  to  decide  the 
facts.  You  do  not  have  to  take  my  view  of  what  the  facts 
are.  You  are  bound  by  what  the  court  says  as  to  the  law; 
but  you  must  determine  the  facts  without  reference  to  what 
the  court  thinks  about  the  evidence. 

So,  if  you,  in  view  of  these  instructions,  find  that  the  Gov- 
ernment has,  by  the  fair  preponderance  of  the  evidence — that 
is,  by  the  greater  weight  of  the  evidence — proved  the  ma- 
terial allegations  of  counts  2,  5,  and  7,  which  relate,  respec- 
tively, to  the  kink  in  the  chain,  the  missing  clevis,  and  the 
missing  grab-iron,  then  your  verdict .  should  be :  "We,  the 
jury,  find  the  defendant  guilty.  If  you  find  that  the  Govern- 
ment has  failed  to  establish  the  facts  as  to  either  counts  2,  5, 
or  7,  then  your  verdict  should  be:  We,  the  jury,  find  the 


APPENDIX    G.  867 

defendant  guilty  on  those  five  counts  I  have  mentioned,  and 
such  of  those  three  counts  as  you  find  the  defendant  guilty, 
and  not  guilty  on  such  counts  as  you  find  the  Government 
has  failed  to  prove  to  your  satisfaction  by  a  fair  preponder- 
ance of  the  evidence. 

Forms  of  verdict  will  be  sent  out  with  you. 


P.  E.  DAILEY  V.  SOUTHERN  RAILWAY  COMPANY. 

(In  the  Circuit  Court  of  the  United  States  for  the  Eastern  District  of 

Tennessee. ) 


Decided  January  10,  1911. 


1.  Liability  of   defendant  because   it  used   cars   liaving  bumpers  when 

plaintiff  was  injured  can  not  be  considered  by  the  jury,  because  the 
record  herein  disclosed  that  plaintiff  had  full  knowledge  of  this 
fact,  and  under  the  doctrine  of  assumption  of  risk  could  not  recover; 
and  the  rule  of  defendant  that  employees  must  not  go  between  cars 
while  they  are  in  motion  should  be  disregarded  here,  because  the 
evidence  shows  that  plaintifT  was  not  injured  by  reason  of  moving 
cars. 

2.  The  burden  of  proof  herein  is  upon  plaintifT  to  show:      (a)   That  the 

interstate  car  on  which  he  was  hurt  would  not  vmcouple  without  a 
man  going  between  the  cars;  (6)  that  such  coupler  would  not  work 
when  operated  in  a  proper  way;  and  (c)  that  the  failure  of  the 
coupler  to  work  was  the  proximate  cause  of  tlie  injury.  Under 
such  state  of  facts  defendant's  failure  to  have  a  coupler  equipped 
according  to  the  Federal  Safety  Appliance  Acts  would  be  an  act 
of    negligence. 

3.  If  plaintiff  in  the  discharge  of  his  duty  went  between  the  cars  on 

account  of  the  defective  coupling  in  order  to  make  tlie  coupling  and 
was  injured,  defendant  Avould  be  liable;  but  not  so  if  plaintiff  went 
between  the  cars  in  order  to  turn  a  safety  cock. 

4.  If  the  fact  that  a  coupler  does  not  work,  as  required  by  the  Safety 

Appliance  Acts,  is  due  to  some  temporary  condition  in  which  the 
oar  is  placed  with  reference  to  other  cars,  or  to  the  movement  of 
the  car  or  of  the  train,  which  could  not  be  avoided  in  the  highest 
state  of  the  art,  the  mere  fact  that  the  coupler  would  not  vmvk 
under  those  conditions  would  not  render  defendant  liable;  but  the 
burden  of  proving  such  conditions  would  be  on  defendant. 

5.  While  the  Safety  Appliance  Acts   prohibit  assumption  of  risk  as  a 

defense,  the  defense  of  contributory  negligence  has  not  been  taken 


868  FEDERAL  SAFETY  APPLIANCE  ACT. 

away.  Those  acts  do  not  excuse  an  employee  from  a  failure  to  use 
ordinary  pnidence  in  bis  own  behalf,  where  he  knows  of  the  ab- 
sence of  the  proper  appliances.  After  having  knowledge  that  the 
appliances  are  not  in  the  condition  required  by  the  Safety  Appliance 
Acts,  if  the  employee  is  giiilty  of  contributory  negligence,  wluch 
operates  as  one  of  the  direct  causes  of  the  injury  which  he  receives, 
then  he  cannot  recover. 

G.  Contributory  negligence  defeats  any  recovery  at  all;  it  does  not  cut 
down  or  decrease  the  amount  of  the  verdict,  except  in  certain  cases 
not  involved  here;  but  the  burden  of  proof  in  contributory  negli- 
gence is  on  defendant. 

7.  When  plaintifl"  shows  that  the  appliances  were  defective  and  in  viola- 
tion of  the  Safety  Appliance  Acts,  it  is  not  incumbent  upon  him  to 
go  further  and  point  out  in  what  respect  the  appliances  were  de- 
fective or  out  of  repair. 

"Webb  &  Baker,  for  plaintiff. 

JouROLMON,  "Welcker  &  Smith,  for  defendant. 

INSTRUCTIONS    TO    JURY. 

Sanford,  District  Judge  (charging  jury)  : 

The  plaintiff,  Perry  E.  Dailey,  sues  the  defendant  for  per- 
sonal injuries,  which  he  received  in  the  year  1908  while  in 
the  employ  of  the  defendant  company.  The  defendant  has 
moved  the  court  for  peremptory  instructions.  That  motion, 
I  neglected  to  say,  is  overruled,  and  I  submit  the  case  to  the 
jury  in  certain  aspects  of  the  case.  In  doing  so  I  wish  to 
say,  however,  that  my  action  in  overruling  this  motion  is 
not  intended  to  be  taken  by  you  as  meaning  that  the  plaintiff 
is  entitled  to  a  recovery.  It  merely  means  that  there  is  such 
a  conflict  in  the  evidence  that  I  think  it  is  a  question  to  be 
passed  upon  by  the  jury  instead  of  the  court. 

In  so  far  as  the  plaintiff  seeks  a  recovery  on  account  of  the 
fact  that  there  were  bumpers  on  the  car,  I  withdraw  that 
question  from  your  consideration;  that  is  to  say,  I  charge 
you  that  under  the  undisputed  evidence,  if  there  be  any  evi- 
dence of  negligence  on  the  part  of  the  defendant  in  regard 
to  the  bumpers,  the  same  evidence  would  also  show  that  the 


APPENDIX    G. 


869 


plaintif!  had  full  knowledge  of  its  having  cars  on  its  line  with 
bumpers,  and,  under  the  doctrine  of  assumption  of  risk,  he 
would  be  held  to  have  assumed  that  risk,  and  consequently 
could  not  recover  on  that  ground.  So  you  will  eliminate  from 
consideration  any  question  of  liability  in  so  far  as  relates  to 
the  bumpers  on  this  car.  Also  as  to  the  question  presented 
by  counsel  with  reference  to  the  rule  of  the  company,  being 
general  rule  No.  10.  This  rule  has  no  application  to  the 
facts  in  this  case,  as  it  is  in  proof  that  this  plaintiff  did  not 
go  in  between  the  cars  while  in  motion  and  that  he  was  not 
injured  by  reason  of  the  motion  of  the  engine,  and  you  may 
hence  disregard  that  rule  in  your  consideration  of  the  case. 

I  do,  however,  submit  the  case  to  you  on  the  question  of 
the  Safety  Appliance  Act. 

There  are  three  questions  that  arise  under  this  proof  that 
are  to  be  passed  upon  by  you — that  is,  if  you  find  some  of 
them  in  favor  of  the  plaintiff  you  may  have  to  pass  upon 
all  of  them,  but  if  you  find  some  of  them  in  favor  of  the 
defendant  you  will  not  have  to  do  so. 

I  will  give  you  these  questions  in  the  order  in  which  they 
should  be  considered. 

In  the  first  place,  however,  I  will  say  that  this  suit  being  a 
civil  case  the  duty  is  on  the  plaintiff  to  make  out  his  case  by  a 
preponderance  of  the  evidence.  The  rule  is  not  the  same  in 
civil  as  in  criminal  cases,  wherein  the  case  must  be  made  out 
beyond  a  reasonable  doubt,  but  the  plaintiff  must  establish 
his  case  by  a  preponderance  of  the  evidence.  And  by  a  pre- 
ponderance is  meant  that  he  must  make  out  his  case  by  the 
greater  weight  of  the  evidence,  to  be  determined  not  merely 
by  the  relative  number  of  witnesses  testifying  as  to  any 
particular  fact,  but  by  the  weight  or  value  of  the  evidence 
as  it  satisfies  your  minds.  Unless,  therefore,  upon  a  con- 
sideration of  the  whole  evidence,  you  believe  that  the  plaintiff 
has  established  the  material  facts  necessary  to  make  out  his 
case  by  a  preponderance  of  the  e^'idenee,  your  verdict  should 
be  for  the  defendant ;  and  if  you  believe  either  that  the  weight 


870  FEDERAL  SAFETY  APPLIANCE  ACT. 

of  the  evidence  is  equally  balanced,  or  that  it  preponderates 
in  favor  of  the  defendant,  then  your  verdict  should  be  for 
the  defendant. 

In  the  first  place,  the  plaintiff  must  prove  by  the  greater 
-iveight  of  the  evidence  that  there  was  a  violation  of  the  Safety 
Appliance  Act.  The  Safety  Appliance  Act  enacted  by  Con- 
gress, that  is,  the  original  act  of  1893,  provides  that  it  shall 
be  unlawful  for  any  common  carrier  engaged  in  interstate 
commerce  by  railroad  ''to  haul  or  permit  to  be  hauled  or 
used  on  its  line  any  car  used  in  interstate  traffic  not  equipped 
with  couplers  coupling  automatically  by  impact,  and  which 
can  be  uncoupled  without  the  necessity  of  men  going  between 
the  ends  of  the  cars ; ' '  and  by  the  amendment  of  1903  it  is 
provided  that  this  provision  and  requirement  shall  apply  to 
"all  trains,  locomotives,  tenders,  cars,  and  similar  vehicles 
used  on  any  railroad  engaged  in  interstate  commerce,  *  *  * 
and  to  all  other  locomotives,  tenders,  cars,  and  similar  vehicles 
used  in  connection  therewith." 

Now,  it  is  undisputed  in  this  case  that  those  cars,  especially 
this  Erie  car,  a  ear  on  which  the  plaintiff  was  hurt,  that  is, 
one  of  them,  was  a  ear  that  had  interstate  freight  in  it ;  it 
was  going  from  either  some  point  up  in  Virginia  or  Tennessee 
to  Georgia.  The  Southern  Railway  Company  is  an  interstate 
carrier,  and  it  was  hauling  interstate  traffic  in  this  train,  and 
it  was  its  duty  to  have  the  cars  in  that  train,  especially  this 
Erie  car,  equipped  with  automatic  couplers  in  compliance 
with  the  Safety  Appliance  Act,  and  it  ought  to  have  had 
couplers  on  that  car  sueli  as  could  be  coupled  and  uncoupled 
without  the  necessity  of  the  men  going  between  the  ends  of 
the  cars  to  perform  the  work. 

Now,  the  first  thing  that  the  plaintiff  has  to  prove  by  the 
greater  weight  of  the  evidence  is  that  there  was  a  coupler 
on  that  car  which  would  not  uncouple  without  the  men  going 
between  the  cars.  If  the  plaintiff  fails  to  prove  that  by  the 
greater  weight  of  the  evidence,  he  fails  in  his  case.  Now,  he 
Kays  that  it  would  not  uncouple  by  working  the  lever;  that 
he  tried  it  several  times  and  that  the  lever  would  not  work 


APPENDIX   G.  871 

and  the  car  would  not  uncouple.  Now,  the  first  thing  for 
your  consideration  is  whether,  from  the  weight  of  the  evi- 
dence, you  believe  that  statement.  The  defendant  relies  on 
the  evidence  of  the  conductor,  who,  after  the  accident,  tried 
this  lever  and  it  worked  all  right,  as  he  states,  and  that  he, 
as  a  matter  of  fact,  from  his  testimony  uncoupled  the  car; 
and  of  the  inspector,  who  says  that  a  little  bit  later  on  he 
worked  the  lever  and  it  worked  all  right,  although  at  the 
time  he  worked  it  the  ear  was  not  coupled  to  the  other  car. 
Now,  the  first  question  you  have  to  determine  is  whether  or 
not  it  is  a  fact  that  the  coupler  would  not  work,  and  if  you 
find  as  a  matter  of  fact  that  it  would  not  work,  that  the 
plaintiff  tried  to  make  it  work,  but  that  it  would  not  work, 
of  course  the  next  question  for  you  to  consider  is  whether  he 
tried  to  work  it  in  the  proper  way.  If  it  would  not  work 
because  he  did  not  operate  it  in  the  proper  way,  of  course 
there  would  be  no  liability  on  the  part  of  the  railway  com- 
pany in  that  regard.  But  if  he  tried  to  work  it  in  the  proper 
way  and  it  would  not  work,  if  you  find  that  to  be  the  case, 
then  I  charge  you  that  the  burden  of  proof  would  shift,  and 
that  would  raise  the  presumption  that  there  was  something 
wrong  with  that  coupler,  and  then  the  burden  of  proof  would 
be  on  the  defendant  to  show  why  that  state  of  facts  existed 
and  to  explain  it. 

Now  I  charge  you  that  if  a  coupler  does  not  work  in  every 
instance,  and  if  the  fact  that  it  does  not  work  is  due  to  some 
temporary  condition  in  which  the  car  is  placed  with  reference 
to  other  cars,  or  the  movement  of  the  car  or  of  the  train  in 
which  it  is  placed,  which  is  a  condition  that  will  happen  in 
any  coupler,  and  which  can  not  be  avoided  in  the  highest 
state  of  the  art,  the  mere  fact  that  it  w^ould  not  work  under 
those  conditions  "would  not  render  the  company  liable.  But 
upon  that  ground  the  burden  of  proof  rests  on  the  company, 
if  you  think  that  it  would  not  work  when  operated  in  the 
proper  way,  to  show  that  the  coupler  was  of  the  highest 
state  of  the  art  and  that  the  reason  that  it  would  not  work 
was  that  it  was  impossil)le  to  have  a  coupler  that  would  work 


872  FEDER^Uj   S.iPETY   APi'LIANCE    ACT. 

in  that  condition.  On  that  question  the  burden  of  proof 
would  be  on  the  railway  company,  if  you  believe  from  the 
e^ddence  that  the  coupler  would  not  work  when  properly 
operated. 

If  you  find  in  favor  of  the  plaintiff  that  the  coupler  would 
not  work,  and  find  that  the  defendant  failed  to  show  that 
it  had  a  coupler  up  to  the  highest  standard,  and  to  explain 
its  failure  to  work  in  the  manner  I  have  indicated,  the  next 
duty  devolving  upon  the  plaintiff  to  entitle  him  to  a  recovery 
is  to  show  that  the  failure  of  the  coupler  to  work  was  the 
proximate  cause  of  the  injury.  It  is  not  disputed  that  he 
w^as  working  in  between  those  two  cars,  and  the  failure  to 
have  a  coupler  equipped  according  to  the  Safety  Appliance 
Act  would  be  an  act  of  negligence.  But  an  act  of  negligence 
does  not  make  the  company  responsible  for  an  injury  which 
does  not  result  from  the  act  of  negligence  in  such  sense  that 
the  company's  negligence  is  the  proximate  cause  of  the  injury. 
Ordinarily  when  an  injury  is  the  natural  and  probable  con- 
sequence of  negligence,  or  a  wrongful  act  such  as  the  viola- 
tion of  a  statute,  and  ought  to  have  been  foreseen  in  the  light 
of  the  attending  circumstances,  and  there  is  no  intervening 
or  independent  cause,  such  negligence  or  wrongful  act  is  said 
to  be  the  proximate  cause  of  the  injury.  And  where  care- 
lessness or  negligence  in  the  bringing  about,  for  example,  of  a 
dangerous  condition,  or  unlawful  condition,  is  of  a  character 
which,  according  to  the  usual  experience  of  mankind,  is  cal- 
culated to  invite  or  induce  the  intervention  of  some  subse- 
quent cause,  such  intervention  will  not  excuse  the  original 
wrongdoer,  and  the  subsequent  mischief  will  be  held  to  be  the 
result  of  the  original  misconduct. 

In  other  words,  it  will  be  your  duty  to  determine  whether 
it  was  a  natural  and  probable  consequence  of  having  a  car 
in  such  condition,  in  violation  of  the  Safety  Appliance  Act, 
if  you  find  it  was  in  such  condition,  that  an  employee  in  the 
discharge  of  his  duty  would  be  injured  in  going  between  two 
cars  in  making  a  coupling  which  he  was  required  to  do  because 
of  the  defective  condition  of  the  coupler. 


APPENDIX    G.  873 

In  such  case,  if  you  find  it  to  be  the  natural  and  probable 
consequence  of  having  a  coupling  apparatus  in  a  condition 
that  it  would  not  work  and  that  an  employee  in  the  discharge 
of  his  duty  on  account  of  the  defective  coupling  would  have 
to  go  in  between  the  cars  to  make  the  coupling,  then  you 
would  be  justified  in  regarding  the  defective  condition  of  the 
coupling  as  a  proximate  cause  of  the  resulting  injury  to  the 
employee,  provided  he  went  between  the  cars  for  the  purpose 
of  making  a  coupling  or  uncoupling.  And  in  that  aspect  of 
the  case,  in  determining  whether  the  condition  of  the  coupling 
was  the  proximate  cause  of  the  injury,  you  would  have  to 
determine,  as  a  material  matter,  whether  he  was  making  the 
uncoupling  or  whether  he  went  there  betw'een  the  cars  to  turn 
the  safety  cock.  It  might  w^ell  be  a  consequence  to  be  fore- 
seen and  guarded  against  of  having  a  coupling  in  a  defective 
condition  that  a  man  Avould  have  to  go  between  the  cars  to 
make  a  coupling  or  uncoupling,  but  it  would  not  follow^  at 
all  that  from  having  a  coupling  in  a  defective  condition  a  man 
would  go  between  the  cars  for  the  purpose  of  turning  the 
safety  cock  if  he  would  have  to  go  in  between  the  cars  to 
turn  the  safety  cock  regardless  of  the  question  of  whether  the 
coupler  worked  or  not.  In  other  words,  if  he  would  have  to 
go  between  the  cars  to  turn  the  safety  cock  whether  the 
coupling  was  working  or  not,  then  it  is  clear  that  whatever 
the  condition  of  the  coupling  was  it  would  not  involve  lia- 
bility as  a  result  of  going  between  the  cars,  not  to  handle  the 
coupling,  but  to  turn  the  safety  cock.  So  that  you  will  have 
to  find  the  object  for  which  he  went  betW'Cen  those  ears. 

Now,  if  you  find  that  the  coupler  was  defective,  that  he 
condition  of  the  coupler  was  the  proximate  cause  of  the  acci- 
dent, the  defendant  still  says  that  it  would  not  be  liable, 
because  the  plaintiflP  was  guilty  of  contributory  negligence. 

Now,  while  the  Safety  Appliance  Act  provides  that  the 
employee  does  assume  the  risk  of  using  the  defective  appliance 
itself,  it  has  been  held  that  it  does  not  take  aAvay  from  the 
company  the  defense  of  contributory  negligence.  That  is,  the 
statute  does  not  excuse  the  employee  from  a  failure  to  use 


874  FEDERAL    SAFETY    APPLIANCE    ACT. 

ordinary  prudence  in  his  own  behalf,  where  he  knows  of  the 
absence  of  the  proper  appliances,  and  if  the  employee,  after 
ha\ing  knowledge  that  the  appliances  were  not  in  the  con- 
dition required  by  the  statute,  he  himself  is  guilty  of  contribu- 
tory negligence,  which  operates  as  one  of  the  direct  causes 
of  the  injury  which  he  receives,  then  he  cannot  recover. 

Now,  to  take  an  extreme  case,  simply  to  illustrate  the  dis- 
tinction :  If  an  employee  knows  that  there  are  no  automatic 
couplers  on  the  cars,  but  should  attempt,  with  knowledge  of 
that  fact,  to  go  in  between  two  cars  on  a  rapidly  moving 
train  to  make  a  coupling,  say  a  train  running  at  the  rate 
of  20  miles  an  hour,  or  when  the  cars  are  moving  so  fast  that 
an  ordinarily  prudent  man  with  due  regard  for  his  own 
safety  would  not  go  between  the  cars  to  make  a  coupling  at 
that  time,  he  would  obviously  be  guilty  of  contributory  negli- 
gence, which  would  bar  a  recovery,  although  he  did  not  as- 
sume the  general  risk  of  continuing  in  the  service  of  the 
company  with  the  knowledge  of  the  fact  that  there  were  no 
automatic  couplers  on  the  car.  So,  then,  the  question  would 
be,  if  you  find  in  favor  of  the  plaintiff  on  the  first  two  propo- 
sitions, was  the  plaintiff,  mth  the  laiowledge  he  had  of  the 
conditions,  guilty  of  contributory  negligence  in  going  between 
the  cars  at  that  time? 

Now,  contributory  negligence  is  a  failure  on  the  part  of  a 
man  to  exercise  that  amount  of  care  which,  under  the  circum- 
stances, might  be  reasonably  expected  of  an  ordinarily  prudent 
person,  and  whenever  a  plaintiff  himself  so  far  contributed 
to  his  injury  by  his  owti  negligence  or  want  of  ordinary  care 
or  caution  that  but  for  such  neglect  or  want  of  ordinary  care 
and  caution  on  his  part  the  accident  would  not  have  hap- 
pened, then  he  is  guilty  of  contributory  negligence  and  cannot 
recover. 

The  test  of  his  contributory  negligence  is  the  care  that  an 
ordinarily  prudent  man,  similarly  situated,  under  the  same 
circumstances,  with  like  knowledge  of  the  conditions,  would 
have  exercised  in  his  own  behalf,  and  a  failure  to  use  such 
care,  operating  as  a  direct  cause  of  the  injury,  is  contribu- 


APPENDIX    G.  875 

tory  negligence.  If,  however,  gentlemen,  the  danger,  although 
present  or  appreciated,  is  one  which  many  men  are  in  the 
habit  of  assuming,  and  which  prudent  men  who  earn  a  living 
are  willing  to  assume  for  extra  compensation,  and  if  the 
person  assuming  such  risk,  having  in  view  the  risk  of  the 
dangers  thus  assumed,  while  assuming  it,  still  uses  care  rea- 
sonable and  commensurate  with  the  risks  to  avoid  injurious 
consequences,  he  is  not  guilty  of  contributory  negligence.  But 
if  an  employee,  who  knows  the  danger  vdiile  assuming  the 
risk,  does  not  use  such  care  in  his  own  behalf,  and  by  reason 
of  the  failure  to  use  such  care  suffers  injury,  he  is  guilty  of 
contributory  negligence,  and  cannot  recover,  even  though  the 
negligence  of  the  employer  in  violating  the  statute  was  also  a 
cause  of  the  injury. 

So,  then,  you  should  determine  this  question.  If  there 
would  otherwise  be  a  case  against  the  defendant  on  account 
of  the  violation  of  the  statute,  still  would  an  ordinarily  pru- 
dent man  situated  as  this  plaintiff  was,  and  with  a  knowledge 
of  those  conditions  of  the  liability  of  the  car  to  come  back 
after  the  cars  had  been  backed  up  a  slight  grade — would  an 
ordinarily  prudent  man  have  gone  in  between  those  cars  to 
make  that  coupling?  Or,  if  an  ordinarily  prudent  man,  earn- 
ing his  living  as  this  plaintiff  was,  and  in  view  of  the  risks 
which  were  assumed  by  him,  if  an  ordinarily  prudent  man 
would  have  gone  in  between  the  cars  at  all,  would  he  have 
gone  in  in  the  way  that  this  plaintiff  did,  and  would  he  have 
placed  himself  in  the  position  with  reference  to  the  bumpers 
and  the  cars  that  this  plaintiff  did?  That  is,  did  the  plaintiff 
take  care  of  himself  under  these  circumstances,  in  going  be- 
tween these  cars,  first,  with  reference  to  going  in  at  all,  and 
second,  with  reference  to  the  position  of  his  body  and  arms 
after  he  went  in  there  that  an  ordinarily  prudent  man  would 
have  done,  with  due  regard  to  his  own  safety? 

A  man  must  exercise  ordinary  care  for  himself  and  for 
the  preservation  of  his  owti  life,  and  if  he  fails  to  exercise 
that  ordinary  care  that  a  reasonably  prudent  man  would,  and 
that  is  one  of  the  causes  of  the  injury  received,  he  cannot 


876  FEDERAL  SAFETY  APPLIANCE  ACT. 

recover,  no  matter  what  the  negligence  of  the  defendant  may 
have  been. 

Or,  that  question  the  burden  of  proof  is  on  the  defendant, 
and  it  must  establish  the  want  of  care  either  in  going  in  at 
all,  or  in  the  way  he  conducted  himself  after  going  in ;  it  must 
establish  that  want  of  care  by  a  preponderance,  or  a  greater 
weight  of  the  evidence.  On  the  first  two  propositions,  that 
the  company  was  not  operating  in  compliance  with  the  Safety 
Appliance  Act,  if  that  be  the  case,  and  if  that  be,  that  this 
was  a  proximate  cause  of  plaintiff's  injury,  the  burden  of 
proof  is  on  the  plaintiff.  His  proof  on  that  subject  must 
overweigh  the  defendant's  proof.  But  if  you  get  to  the 
other  proposition  then  the  burden  of  proof  shifts,  and  the 
defendant  is  required  to  establish  by  the  greater  weight  of 
the  evidence  the  fact  of  plaintiff's  contributory  negligence. 
But  if  it  does  establish  it,  there  can  be  no  recovery.  It  would 
not  be  a  question  of  cutting  down  the  amount  of  damages. 
Contributory  negligence  defeats  any  recovery  at  all ;  it  does 
not  cut  down  or  decrease  the  amount  of  the  verdict,  except 
in  certain  cases  not  involved  here. 

If  you  find  in  favor  of  the  plaintiff,  it  would  be  your  duty 
to  assess  his  damages.  The  damages  which  you  would  assess 
should  be  compensatory.  In  doing  this,  you  should  consider 
all  the  circumstances  connected  mth  the  plaintiff,  his  age,  his 
earning  capacity,  his  habits,  his  prospects  of  life,  and  of 
earning  wages  in  life,  the  extent  to  which  he  has  been  de- 
prived of  earning  a  livelihood  as  a  result  of  this  injury,  and 
of  the  means  of  earning  a  livelihood;  if  you  find  that  he  is 
entitled  to  a  recovery  at  all,  you  should  fix  such  sum  as  in 
your  judgment  would  be  a  fair  and  just  compensation  for  the 
injury  received,  as  well  as  would  be  a  fair  and  just  com- 
pensation for  the  suffering,  and  the  expenses  to  Avhich  he  was 
put — the  medical  expenses — although  I  believe  none  were 
proven  in  this  case.  But  if  you  find  he  is  entitled  to  a  re- 
covery, you  give  such  sum  as  will  compensate  for  the  suffer- 
ing, the  loss  of  time,  and  the  decrease  of  his  earning  capacity. 


APPENDIX    G.  877 

You  are  the  judges  of  the  weight  to  be  given  to  the  testi- 
mony of  the  witnesses.  You  should  consider  tlieir  demeanor 
on  the  witness  stand,  their  intelligence,  their  manner  of  tes- 
tifying, the  extent  to  which  they  are  contradicted  or  cor- 
roborated by  other  witnesses,  their  candor,  or  lack  of  candor, 
interest,  or  lack  of  interest,  in  the  result  of  this  lawsuit,  and 
the  reasonableness  of  the  story  they  tell,  and  then  determine 
where,  in  your  opinion,  under  the  law,  as  given  you,  the  truth 
of  this  case  is  to  be  found. 

Verdict  for  plaintiff,  $5,000. 


No.  1007. 


THE  NORFOLK  &  WESTERN  RAILWAY  CO.,  PLAIN- 
TIFF IN  ERROR,  V.  THE  UNITED  STATES  OF 
AMERICA,  DEFENDANT  IN  ERROR. 

United   States   Circuit   Court   of   Appeals,   Fourth    Circuit.) 


In  error   to  the   District   Court   of  the  United   States   for   the   Eastern 
District  of  North  Carolina,  at  Raleigh. 


Argued  Fehruary  15,  1911.     Decided  October  l-i,  1911. 


1.  Admissibility  isr  Evidb:nce  of  ]\Iodel  Couplers. 

Where  there  is  a  question  as  to  complicated  machinery  it  is  com- 
petent to  use  any  model  or  drawing  that  may  illustrate  the  condition 
of  such  miachinery,  so  as  to  give  the  jur\'  a  clear  and  distinct  idea 
as  to  the  nature  and  character  of  the  defect,  in  order  that  they  may 
intelligently  deal  with  the  question  submitted  for  their  considera- 
tion.     Citing  cases. 

2.  Admissibility  of  Irrelevant  Quesitox. 

Question  of  defendant's  counsel  relative  to  an  inspection  other 
than  that  on  which  complaint  was  based:     Held,  Properly  excluded. 

3.  Admissibility  of  Rules  Governing  In'spections. 

Where  the  purpose  of  the  inspection  was  to  secure  evidence  for 
prosecution:  Held,  Tliat  the  rule  of  the  Commission  requiring 
inspectors  in  all  other  cases  to  make  themselves  known  to  com- 
pany's employees  was  properly  excluded. 


878  FEDERAL  SAFETY  APPLIANCE  ACT. 

4.  Notification  of  Railroad  at  Time  of  Discovering  Defbxjt. 

The  court  below   properly   held   that   inspectors   need   not   notify 
defendants  of  the  existence  of  defects  at  the  time  of  their  discovery. 
Citing  cases. 
6.  Refusal  of  Court  to  Grant  Prayer  Covered  by  Other  Instruc- 
tions. 
Where  the  court  refuses  a  prayer  and  then  in  its  general  charge 
or  in  another  prayer  covers  the  point  in  question,  even  though  it 
erred  in  refusing  the  prayer,  such  error  is  not  prejudicial,  and  is 
therefore   harmless. 
6.  Degree  of  Diligence  Required  by  the  Act. 

The  trial  court  proj^erly  refused  to  instruct  the  jury  that  "the 
law  does  not  impose  upon  a  railroad  company  the  duty  of  an 
absolute  insurer  as  to  the  perfect  condition  of  such  safety  appliances 
at  all  times  and  under  all  conditions  and  circumstances."  Citing 
cases. 

William  A.  Guthrie  (Theodore  W.  Reach  on  the  brief), 
for  the  plaintiff  in  error. 

H.  F.  Seawell,  United  States  attorney,  and  Philip  J.  Do- 
herty,  special  assistant  United  States  attorney  (Roscoe  F. 
Walter,  special  assistant  United  States  attorney,  on  the 
brief),  for  the  defendant  in  error. 

Before  Goff  and  Pritchard,  Circuit  Judges,  and  Rose,  Dis- 
trict Judge. 

statement  of  facts. 

This  is  an  action  in  debt  begun  by  the  United  States  to 
recover  a  penalty  of  $100  incurred  by  the  defendant  in 
hauling  a  car  not  equipped  as  provided  in  the  Safety  Appli- 
ance Act  of  March  2,  1893,  as  amended  by  an  act  approved 
March  2,  1903. 

The  petition  charged  in  substance  that  the  defendant  was 
a  common  carrier  engaged  in  interstate  commerce  by  rail- 
road, and  as  such,  on  August  28,  1908,  hauled  on  its  line  of 
railroad  one  car,  to-wit,  its  own  No.  20370,  containing  inter- 
state traffic,  to-wit,  tobacco  consigned  to  a  point  without  the 
State  of  North  Carolina.  It  further  alleged  that  on  said  date 
the  defendant  hauled  said  traffic  in  said  car  from  Durham, 
in  the  State  of  North  Carolina,  in  a  northerly  direction,  when 


APPENDIX    G.  879 

the  coupling  and  uncoupling  apparatus  on  the  "B"  end  of 
the  car  was  out  of  repair  and  inoperative,  the  uncoupling 
chain  being  kinked  inside  the  coupler  head  on  said  end  of 
said  car,  thus  necessitating  a  man  or  men  going  between  the 
ends  of  the  cars. 

The  defendant  answered  and  admitted  that  it  was  a  com- 
mon carrier  engaged  in  interstate  commerce,  and  that  it 
hauled  car  N.  &  W.  20370  on  the  date  alleged  from  Durham, 
in  the  State  of  North  Carolina,  and  that  this  car  was  used  in 
the  movement  of  interstate  traffic,  but  denied  that  the  coupling 
and  uncoupling  apparatus  on  the  ''B"  end  of  the  said  car 
was  out  of  repair  and  inoperative  as  alleged  in  the  petition. 
On  May  31,  1910,  there  was  a  trial  of  this  case  before  a  jury 
on  the  following  issue: 

Was  the  coupling  chain  on  the  "B"  end  of  N.  &  W.  car  No.  20370 
kinked  in  the  head  of  the  coupler  when  said  car  left  Durham,  N.  C; 
on  August  28,  1908,  and  inoperative  so  that  it  required  a  man  or  men 
to  go  between  the  ears  to  couple  and  imcouple  it,  as  is  alleged  in  the 
petition  ? 

The  finding  of  the  jury  was  in  the  affirmative,  upon  which 
finding  judgment  was  entered  against  the  defendant  in  the 
sum  of  $100. 

OPINION    OF    THE    COURT. 

Pritchard,  Circuit  Judge: 

The  first  assignment  of  error  is  to  the  effect  that  the  court 
below  erred  in  allowing  the  plaintiff  the  use  of  models  of  the 
Climax  and  Tower  couplers  as  a  means  of  demonstrating  his 
evidence  while  the  Government  witness.  Cash,  was  being  exam- 
concerning  the  condition  of  the  ]\Iajor  coupling,  the  kind  with 
■which  the  car  in  question  was  equipped.  The  model  in  ques- 
tion was  used  merely  for  the  purpose  of  aiding  the  court  and 
the  jury  in  ascertaining  as  to  whether  there  was  any  defect 
in  the  coupler,  and  it  was  admitted  by  the  Government  that 
this  model  was  not  exactly  like  the  coupler  attached  to  the 
ear  in  question.     It  was  not  introduced  in  evidence,  but  the 


880  FEDERAL  SAFETY  APPLI.iNCE  ACT. 

court  permitted  the  use  of  the  same  to  illustrate  the  condition 
of  the  coupler  just  as  maps  and  drawings  are  used  in  the 
trial  of  ejectment  suits.  It  was  contended  by  the  Govern- 
ment that  the  chain  was  kinked  in  the  coupler  head,  but  there 
was  no  complaint  as  to  the  lock  block,  Mr.  Cash,  while  on  the 
witness  stand,  among  other  things,  testified  as  follows : 

Q.  By  means  of  this  model  you  may  explain  to  the  court  and  the 
jury  just  what  condition  you  found  the  coupling  apparatus  on  the  "B" 
end  of  this  car? — ^A.  We  haven't  here  a  Major  coupler,  but  one  of  these 
is  known  as  the  Climax  and  the  other  the  Tower.  The  Major  coupler 
is  made  more  on  this  order,  on  the  order  of  the  coupler  [indicating"! 
and  the  chain  had  gotten  kinked  in  this  position  [indicating]  in  sucn 
a  way  that  you  couldn't  get  it  far  enough  either  way  to  get  it  out, 
and  it  was  perfectly  rigid. 

Thus  it  will  be  seen  that  this  model  was  used  solely  for  the 
purpose  of  illustrating  the  exact  condition  of  the  chain  at 
the  time  the  inspection  was  made.  Where,  in  a  trial  like  the 
one  at  bar,  there  is  a  question  as  to  complicated  machinery,  it 
is  competent  to  use  any  model  o-r  drawing  that  may  illustrate 
the  condition  of  such  machinery  so  as  to  give  the  jury  a  clear 
and  distinct  idea  as  to  the  nature  and  character  of  the  defect 
in  order  that  they  may  intelligently  deal  with  the  question 
that  is  submitted  for  their  consideration. 

Wigmore  on  Evidence,  volume  1,  section  791,  contains  the 
following  statement  as  to  the  rule: 

The  use  of  models,  maps,  and  diagrams  as  modes  of  conveying  a  wit- 
ness's knowledge  is  illustrated  in  manifold  rulings,  as  well  as  in  the 
•daily   practice   of   trials. 

Citing  an  instance  in  a  trial  in  an  English  court.  (Watson's 
trial,  32  How.  St.  Tr.,  125.) 

Also  in  the  follo^^^ng  cases  this  rule  is  announced :  Western 
Gas  Company  v.  Danner  (97  Fed.  Rep.,  892)  ;  Southern  Pa- 
cific Co.  V.  Hall  (100  Fed.  Rep.,  760)  ;  Dobson  v.  Whisenhant, 
(101  N.  C,  645). 

We  think  the  action  of  the  court  below  in  permitting  the 
use  of  models  merely  for  the  purpose  of  illustration  was  not 
prejudicial  to  the  rights  of  the  defendants. 


APPENDIX   G.  881 

The  second  objection  is  to  the  effect  that  the  court  below 
erred  in  sustaining  the  objection  of  counsel  for  the  Govern- 
ment to  the  following  question  put  to  the  Government  inspec- 
tor, Cash,  on  cross-examination. 

I  ask  you  if  in,  one  of  your  visits  (to  Lynchburg  yards)  on  an  inspec- 
tion tour  you  did  not  find  a  car  where  the  chain  appeared  to  be  kinked 
in  the  coupler  head,  and  if  you  were  not  about  to  take  a  note  of  it  when 
Mr.  dark  and  his  assistant,  Mr.  Wingfield  (the  company's  inspector), 
who  were  present  in  tlie  yard,  and  if  Mr.  Clark  did  not  take  hold  of  the 
lever  and  by  the  lerver  alone  shake  the  pin  or  chain  that  held  the  pin  in 
proper  position  and  you  did  not  thereupon  say,  "This  seems  to  be  all 
right" — ^not  this  particular  car   in  question  but  on  another  car? 

This  evidence,  it  appears,  relates  to  a  time  and  place  differ- 
ent from  that  alleged  in  the  declaration,  and  we  cannot 
understand  upon  what  theory  it  could  have  been  offered  as 
having  any  bearing  whatever  upon  the  issues  involved  in  this 
controversy.  In  the  first  place,  there  is  nothing  to  indicate 
what  would  have  been  the  witness's  answer,  but  in  any  event 
this  testimony  would  not  be  competent.  The  witness  was 
being  cross-examined  and  it  was  purely  within  the  discretion 
of  the  court  as  to  whether  he  should  be  required  to  answer 
the  question,  inasmuch  as  it  did  not  tend  to  throw  light  upon 
the  issues  raised  by  the  pleadings,  and  we  think  the  court  very 
properly  excluded  the  same. 

The  next  point  relates  to  the  refusal  of  the  court  to  permit 
the  defendant  to  introduce  a  pamphlet  marked  "A.  H.  G.  C." 
containing  the  rules  of  the  department,  upon  the  examination 
of  witness  Cash.  That  portion  of  the  rules  offered  as  evidence 
is  in  the  following  language : 

I.  Tn  all  inspections  except  in  those  intended  to  secure  evidence  of 
violation  of  the  law,  the  inspector  should  make  himself  known  to  the 
foreman  or  other  official  of  the  mechanical  department  or  in  the  absence 
of  that  officer,  to  the  agent  or  other  employee  next  in  authority.  In  aJl 
cases  have  name  and  title  of  such  officer  or  employee  included  in  report 
of  inspection.  Whenever  practicable  the  official  found  in  charge  should 
be  invited  to  accompany  or  send  a  representative  with  the  inspector, 
and  the  person  so  accompanying  the  inspector  should  have  his  attention 
dra^\^l  to  all  defects  noted.  The  time  of  making  inspections  is  to  be 
sho\vn  on  each  report.     *     *     * 

Tlie  object  of  these  instructions  is  to  en  11  the  attention  of  inspectors 
to  certain  rules  to  be  observed  in  obtaining  evidence  upon  which  the 


882  FEDERAL  SAFETY  APPLIANCE  ACT. 

Government  can  successfully  prosecute.  Inspectors  should  enter  upon 
the  investigation  of  every  case  in  a  spirit  of  fairness  and  with  a  desira 
to  perform  their  whole  duty  as  officials  of  the  Government,  directed. 
to  aid  in  the  execution  and  enforcement  of  the  law. 

It  is  provided  by  the  foregoing  that  in  any  inspection, 
except  those  intended  to  secure  evidence  of  violation  of  the 
law,  that  the  inspector  should  make  himself  known  to  the 
officer  in  charge,  or,  in  the  absence  of  the  agent,  the  next 
official  in  authority,  and  whenever  practicable  the  official 
found  in  charge  should  be  invited  to  accompany  or  send  a 
representative  with  the  inspector  so  as  to  have  his  attention 
called  to  any  defects  and  the  same  noted.  The  next  paragraph 
is  explanatory  of  this  rule,  and,  among  other  things,  it  is 
stated  therein  that  the  inspectors  must  observe  the  rules  under 
which  they  operate  and  enter  upon  every  investigation  with  a 
spirit  of  fairness  and  a  desire  to  perform  their  whole  duty  as 
official  directed  to  aid  in  the  execution  and  enforcement  of  the 
law. 

The  real  issue,  as  we  have  stated,  in  this  case  is  as  to  whether 
the  defendant  violated  the  law  by  hauling  over  its  road  one 
of  its  cars  the  coupler  of  which  was  in  a  defective  condition. 
It  should  be  borne  in  mind  that  at  this  time  the  witness  was 
engaged  in  the  performance  of  his  duties  at  Durham  and  was 
endeavoring  to  secure  evidence  of  violation  of  the  law  and  the 
exception  to  the  rule  is  to  the  effect  that  in  such  cases  he  is 
not  required  to  make  himself  known.  The  witness  testified 
that  on  that  occasion  he  was  seeking  evidence  of  violation 
of  the  law,  and  inasmuch  as  the  evidence  shows  that  the  work 
in  which  he  was  engaged  at  that  time  brought  him  clearly 
Avithin  the  exception  of  this  rule,  we  fail  to  see  how  the  rule 
and  the  instructions  proposed  to  be  introduced  could  have 
had  any  bearing  upon  the  issue  raised  by  the  pleadings. 
"Witness  Cash,  among  other  things,  testified  as  follows : 

Q.  What  was  the  purpose  of  your  going  to  the  yard  of  the  Norfolk  & 
Western  that  morning?—  A.  To  see  whether  or  not  the  Norfolk  &  West- 
em  was  complying  with  the  safety  appliance  law  with  reference  to  their 
equipment. 


APPENDIX    G. 


883 


Inspector  Cullinane  also  testified  as  follows : 


Q.  When  you  and  Mr.  Cash  went  there  (to  Durham,  N.  C,  on  August 
2S,  190S),  you  were  making  a  general  visitation  to  see  whether  or  not 
you  could  find  any  violation  of  the  safety  appliance  law? — A.     Yea,  sir. 

Thus  it  clearly  appears  that  the  inspectors  were  acting 
strictly  within  the  scope  of  their  authority.  Therefore  the 
admission  of  this  evidence  would  not  have  been  competent 
in  any  view  of  the  case — not  even  for  the  purpose  of  impeach- 
ing the  witness.  He  testified  that  they  were  looking  for  vio- 
lations of  the  law,  and,  as  we  have  stated,  the  rule  clearly 
provides  that  in  such  cases  the  inspector  is  not  required  to 
disclose  his  identity.  Therefore  we  think  the  ruling  of  the 
court  below  as  to  this  point  was  eminently  proper. 

It  is  also  insisted  that  the  court  below  erred  in  granting 
an  instruction,  at  the  request  of  counsel  for  the  Government, 
to  the  effect  that  the  Government  inspector  was  under  no  legal 
obligation  to  inform  the  railroad  company  of  defective  cars. 
Congress  by  the  enactment  of  the  statute  by  virtue  of  which 
this  suit  was  instituted  evidently  intended  to  hold  the  railroad 
companies  to  a  high  degree  of  diligence  in  equipping  and 
maintaining  their  cars  with  the  proDcr  safety  appliances.  If 
it  is  the  intention  of  the  law  that  when  an  inspector  goes  from 
place  to  place  and  when  he  finds  a  car  in  a  defective  condition 
that  it  is  his  duty  to  notify  the  company  of  the  same  before 
the  car  is  transported,  then  it  would  be  impossible  to  secure 
anything  like  a  fair  enforcement  of  the  law  which  penalizes 
the  railroads  for  not  properly  equipping  and  maintaining 
their  cars  with  safety  appliances. 

In  the  case  of  United  States  v.  So.  Ry.  Co.,  Kent's  Index- 
Digest,  125,  the  court  said : 

Inspectors  in  the  employ  of  the  Interstate  Commerce  Commission  are 
not  required  to  inform  the  employees  of  the  defendant,  when  they  make 
tJie  inspection  of  the  cars  sued  upon,  of  the  defects  found  in  the 
appliances. 

Also  in  the  case  of  the  United  States  v.  A.,  T.  &  S.  F. 
Ry.  Co.,  Kent's  Index-Digest,  125,  the  court  said: 


884  FEDERAL  SAFETY  APPLIANCE  ACT. 

The  inspectors  for  the  Government  are  not  required  to  notify  the 
employees  of  the  railroad  company  of  existing  defects  previous  to  or 
at  the  time  of  movement  of  defective  cars. 

Under  the  circumstances  of  this  case,  and  in  view  of  the 
requirements  of  the  statute,  we  think  the  court  did  not  err  in 
granting  this  instruction. 

It  is  also  urged  that  the  court  erred  in  refusing  to  grant 
instruction  No.  2,  requested  by  the  defendant.  The  instruc- 
tion in  question  is  in  the  following  language : 

If  there  is  a  mistake  of  fact  as  to  the  basis  of  the  charge,  the  defend- 
ant is  entitled  to  recover. 

In  this  instruction  no  particular  fact  is  referred  to  as  having 
any  bearing  upon  the  controversy  that  was  then  being  con- 
sidered by  the  jury.  It  is  simply  an  abstract  proposition  of 
law  unaccompanied  by  any  explanation  as  to  its  relevancy 
to  the  facts  then  being  considered  by  the  jury.  However, 
the  court  submitted  to  the  jury  an  instruction,  -which,  though 
not  in  the  same  words,  substantially  covered  the  point  sought 
to  be  raised  by  the  instruction  offered  by  the  defendant.  This 
instruction  reads  as  follows : 

You  are  instructed  that  if  the  imcoupling  chain  on  the  "B"  end  of 
the  car  N.  &  W.  20370  was  so  kinked  in  the  coupler  head  that  with  rea- 
sonable effort  a  man  could  not  operate  the  uncoupling  apparatus  on  said 
end  of  said  car  witliout  going  between  the  ends  of  the  cars,  then  sucii 
car  was  not  in  tlie  condition  required  by  law.  If  you  believe  from  a 
preponderance  of  the  midenee  that  said  car  was  hauled  out  of  Durham, 
in  the  State  of  North  Carolina,  on  August  28,  1908,  in  such  above- 
described  condition,  then  it  is  your  duty  to  answer  the  issue  "Yes." 

Here  the  court  instructed  the  jury  as  to  what  constituted 
a  violation  of  the  law  and  further  informed  them  that  if  they 
failed  to  find  as  a  fact,  by  a  preponderance  of  the  evidence, 
that  the  car  in  question  was  hauled  out  of  Durham,  at  the 
time  mentioned  in  the  petition,  in  a  defective  condition,  that 
it  was  their  duty  to  answer  the  issue  in  favor  of  the  defendant. 
The  point  sought  to  be  presented  in  the  prayer  as  requested 
by  the  defendant  was  substantially  covered  in  the  general 
charge  of  the  court  to  the  jury.  It  has  been  repeatedly  held 
that  where  the  court  refuses  a  prayer  and  then  in  its  general 


APPENDIX   G.  885 

charge  or  in  another  prayer  covers  the  point  in  question,  that 
even  though  the  court  erred  in  refusing  the  prayer  that  such 
error  was  not  prejudicial  and  therefore  harmless. 

It  is  contended  by  the  defendant  that  the  court  erred  in 
refusing  to  give  instruction  No.  8,  which  is  in  the  following 
language : 

The  court  further  charges  the  jury  that  even  thougli  you  find  from  the 
evidence  that  the  chain  was  kinked  in  the  coupler  at  tlie  "B"  end  of 
N.  &  W.  car  No.  20370,  on  the  yard  of  tlie  defendant  at  Durham  at  th? 
time  the  train  was  being  made  up  and  before  it  left  the  yard,  and  while 
the  Government  inspectors  found  it  and  inspected  it,  yet  if  the  kink 
in  the  chain  had  become  loosened  and  unkinked  and  righted  before  the 
train  pulled  out  of  the  yard  and  left  for  L\Tichburg,  then  your  verdict 
should  be  in  favor  of  the  defendant  railway  company,  and  you  should 
answer  the  issue  accordingly. 

The  question  raised  by  this  instruction  was  sufficiently 
covered  by  instructions  Nos.  4  and  5  of  the  defendants,  which 
the  court  had  already  granted.  These  instructions  are  as 
follows : 

That  if  the  jury  find  from  the  evidence  that  N.  &  W.  ear  N'o.  20370, 
described  in  the  petition  and  admitted  in  the  answer,  was  used  in  inter- 
state commerce,  but  before  starting  on  its  interstate  journey,  after  being 
loaded  at  Durham,  X.  C,  with  tobacco  consigned  to  Norfolk,  Va.,  it  was 
carefully  inspected  at  Durham,  N.  C,  by  a  competent  railroad  coupler 
inspector  employed  by  the  defendant  railroad  company  for  that  purpose; 
and  the  coupling  and  uncoupling  apparatus  on  the  "B"  end  of  the  car 
was  not  out  of  repair  and  was  not  inoperative,  and  the  coupling  chain 
was  not  kinked  inside  the  coupler  head  on  said  end  of  the  said  car, 
then  the  jury  should  answer  the  issue  joined  in  favor  of  the  defendant 
and  acquit  the  defendant  of  the  charge. 

That  while  the  testimony  of  the  defendant's  witnesses  who  were  car 
inspectors  at  Lynchburg,  Va.,  and  who  testify  that  said  N.  &  W.  car 
Xo.  20370  was  inspected  on  its  aforesaid  journey  from  Durham,  N.  C, 
via  Lynchburg,  Va.,  to  Norfolk,  Va.,  it  is  not  by  itself  substantive  evi- 
dence as  to  the  condition  of  the  car  when  it  left  Durliam,  N.  C,  yet  it 
is  admitted  as  competent  evidence  to  be  duly  considered  by  the  jury 
tending  to  corroborate  the  testimony  of  the  defendant's  witness,  3ar 
Inspectni  S.  D.  Johnson,  who  testified  that  he  inspected  this  sar  at 
Durham,,  N.  C,  on  the  occasion  complained  of,  and  that  the  coupler 
chain  was  not  kinked  in  the  head  of  the  coupler,  nor  out  of  repair,  ^r 
inoperative. 

It  is  also  contended  that  the  court  erred  in  refusing  to 
grant  the   instruction   which   raised   the   question   as   to  the 


886  FEDERAL  SAFETY  APPLIANCE  ACT. 

degree  of  diligence  required  to  be  exercised  by  railroad  com- 
panies to  constitute  a  compliance  with  the  Safety  Appliance 
Acts.  The  instruction  in  question  is  in  the  following  language : 

But  after  a  railroad  company  has  performed  such  duty  and  equipped 
its  cars  with  such  automatic  couplers,  while  the  law  requires  the 
railroad  company  to  exercise  a  high  degree  of  care  and  diligence  in 
keeping  and  maintaining  such  safety  appliance  in  proper  condition  and 
repair,  so  far  tis  by  reasonable  inspection  from  time  to  time  it  can  be 
reasonably  done,  the  law  does  not  impose  upon  a  railroad  company  the 
duty  of  an  absolute  insurer  as  to  the  perfect  condition  of  such  safety 
appliances  at  all  times  and  under  all  conditions  and  circumstances. 

This  point  was  decided  by  the  Supreme  Court  in  the  case 
of  St.  L.,  I.  M.  &  S.  Ry.  Co.  v.  Taylor  (210  U.  S.,  281)  ;  also  by 
this  court  in  the  cases  of  the  Atlantic  Coast  Line  R.  Co.  v. 
United  States  (168  Fed.  Rep.,  175)  and  the  Norfolk  & 
Western  Ry.  Co.  v.  United  States  (177  Fed.  Rep.,  623).  In 
the  case  of  the  Atlantic  Coast  Line  R.  Co.  v.  United  States 
this  court  in  referring  to  this  phase  of  the  question  said : 

To  sustain  the  contention  of  the  defendant  company  as  to  the  proper 
construction  to  be  placed  upon  the  provisions  of  this  act  would  be  to 
render  the  act  nugatory,  while,  on  the  other  hand,  if  we  construe  it  m 
accordance  vni\\  the  well-established  rules  in  such  cases,  we  afford  life 
and  vitality  to  the  law,  and  thus  give  expressiion  to  the  legislative  will. 
In  other  words,  if  Congress  had  the  power  in  the  first  instance  to 
legislate  so  as  to  regulate  the  conduct  of  railroads  for  the  protection 
of  employees  and  in  the  interest  of  the  traveling  public,  then  it  must 
be  admitted  that  it  has  not,  in  the  passage  of  this  law,  transcended  its 
limitation,  and  any  construction  short  of  holding  the  act  to  be  absolute 
would  leave  undisturbed  the  situation  as  it  existed  piuor  to  its  enact- 
ment, and  it  would  be  difficult  to  imagine  a  state  of  facts  upon  which 
railroads  would  be  liable  for  a  p{'nalty  or  where  an  employee  would  be 
able  to  recover  in  an  action  instituted  to  recover  damages  for  injuries 
incurred  on  account  of  failure  to  perform  the  duties  imposed  by  the 
statute.  It  was  the  manifest  intention  of  'Congress,  in  the  enactment  of 
this  statute,  to  require  all  common  carriers  engaged  in  interstate  com- 
merce to  keep  their  cars  and  engines  at  all  times  equipped  with  proper 
safety  appliances.  The  degree  of  diligence  required  by  the  statute  is  of  the 
highest  order,  and  the  duty  thus  imposed  is  absolute  and  unconditional. 
Therefore  any  failure  on  the  part  of  a  railroad  company  to  comply 
with  its  requirements  must  necessarily  subject  the  railroad  company 
to  the  penalty  imposed. 

The  foregoing  is  in  liarmony  witli  tlio  recent  decision  of  the 
Supreme  Court  in  the  cases  of  E.  M.  Delk  v.  St.  Louis  &  S.  F. 


APPENDIX   G.  887 

R.  Co.  (220  IT.  S.,  580)  and  the  Chicago,  Burlington  & 
Quincy  R.  Co.  v.  United  States  (220  U.  S.,  559),  decided 
May  15,  1911,  expressly  affirming  the  rule  announced  in  the 
case  of  St.  Louis,  I.  M.  &  S.  Ry.  Co.  v.  Taylor,  supra. 

For  the  reasons  stated  the  judgment  of  the  lower  court  is 
affirmed. 


UNITED  STATES  v.  CHICAGO,  ^IILWAUKEE  &  PUGET 

SOUND  RAILWAY  CO. 

(In  the  United  States  District  Court  for  the  District  of  Montana.) 


Decided  May  2,  1911. 


Where  the  eoupler  on  the  front  end  of  a  locomotive  engine  is  defective 
in  that  the  height  of  the  drawbar  is  below  the  mininrnm  provided 
for  in  the  Safety  Appliance  Act,  it  is  a  violation  of  the  statute  to 
use  snch  engine  in  interstate  commerce  even  though  the  coupler  is 
so  defective  that  a  reasonably  prudent  man  would  not  undertake 
to  make  a  coupling,  and  even  though  no  u«e  is  sho^vn  of  the  defective 
coupler,  but  the  end  of  the  locomotive  engine  which  is  not  defective 
is  employed  in  making  the  movement.  The  purpose  of  the  statute 
is  to  protect  the  lives  and  safety  of  all  employees,  whether  they  aore 
reasonably  prudent  or  not. 

STATEMENT    OF   PACTS. 

The  petition  filed  by  the  Government  in  this  case  charged 
that  on  January  10,  1910,  the  defendant  used  its  locomotive 
engine  No.  1163  in  interstate  traffic  when  the  height  of  the 
drawbar  on  the  front  end  was  only  30  inches,  being  below  the 
minimum  provided  for  by  the  Safety  Appliance  Act. 

The  evidence  showed  that  when  first  seen  by  the  Govern- 
ment inspectors  the  front  end  of  the  locomotive  engine  -was 
coupled  to  a  string  of  cars  and  that,  owing  to  the  low  drawbar, 
the  engine  broke  away  from  the  cars  when  an  attempt  was 
made  to  haul  them.  The  engine  was  taken  to  the  roundhouse, 
put  on  the  turntable,  and  brought  out  in  the  yards  and  put  in 
service  again,  but  there  was  no  evidence  of  any  actual  use  of 
the  defective  coupler  after  that  time. 


888  FEDERAL  SAFETY  APPLIANCE  ACT. 

It  was  contended  by  the  defendant  that  the  coupler  was  in 
such  a  condition  that  no  reasonably  prudent  man  would 
attempt  to  use  it.  On  the  other  hand,  it  was  contended  by 
the  Government  that  the  purpose  of  the  Act  was  to  protect 
the  less  prudent  man  who  might,  in  case  of  emergency,  be 
tempted  to  take  chances. 

INSTRUCTIONS   TO   JURY. 

Dietrich,  District  Judge  (charging  jury)  : 

Gentlemen  of  the  jury,  by  the  undisputed  evidence  in  this 
case,  no  issue  of  fact  is  left  for  your  consideration.  As  I 
view  the  law,  it  is  illegal  for  a  railroad  company  to  use  an 
engine  in  the  condition  in  which  this  engine  undoubtedly  was, 
even  though  the  defective  end  was  not  actually  employed. 
By  the  law  it  was  intended  to  prohibit  a  railroad  company 
from  using  a  car  or  engine  having  a  defective  coupler  only 
upon  one  end,  even  though  that  coupler  was  so  defective  that  a 
reasonablj^  prudent  man  would  not  undertake  to  make  a 
coupling  therewith.  The  law  was  intended  to  protect  the 
lives  and  safety  of  all  employees,  whether  they  are  reasonably 
prudent  or  not.  As  I  view  it,  an  engine  in  the  condition  in 
which  this  was  was  a  possible  source  of  great  danger,  in  that 
if  an  employee  were  standing  upon  the  footboard  and  the  head 
of  the  defective  coupler  was  so  low  as  not  to  engage  with  the 
coupler  upon  a  car  in  proper  condition,  thus  permitting  the 
two  cars  to  come  close  together,  the  employee  might  be 
crushed.  Or,  upon  the  other  hand,  an  employee  of  little  ex- 
perience or  caution  might  undertake,  in  case  of  emergency, 
to  couple  the  defective  coupling  with  that  of  another  car,  and 
thus  imperil  his  safety  or  his  life.  In  that  view  I  have  ex- 
eluded  the  testimony  offered  on  behalf  of  the  defendant  and 
declined  to  give  certain  requested  instructions,  and  it  becomes 
your  duty  to  find  a  verdict  in  favor  of  the  plaintiff  in  ac- 
cordance %\ith  the  prayer  of  the  complaint. 


APPENDIX  G, 


889 


DECISIONS  UNDER  THE  SAFETY  APPLIANCE  ACTS. 


UNITED  STATES  OP  AMERICA 

V. 

ATLANTIC  COAST  LINE  RAILROAD  COMPANY. 

(In  the  District  Court  of  the  United  States,  Southern  District  of  Florida. 


Decided  May  28,  1913. 


Safety  Appliance  Acts — Construction — Air  Brake  and  Coupler  Pro- 
visions— Trains. 

1.  In  a  case  in  which  the  declaration  charged  a  common  carrier  engaged  in 

interstate  commerce  by  railroad  with  operating  on  its  line  a  train  of  cars 
when  less  than  85  percent  of  the  cars  of  said  train  had  their  brakes  operated 
by  the  engineer  on  the  locomotive  drawing  said  train,  the  defendant  filed 
a  special  plea  setting  up  that  the  cars  were  "merely  being  moved  about  in 
switching  operation  at  the  times  and  places  alleged."  To  this  plea  a 
demurrer  was  interposed  by  the  Government:  Held,  That  a  train  of  cars 
used  in  interstate  traffic  falls  within  the  meaning  of  the  Safety  Appliance 
Act,  as  amended,  whether  used  in  regular  transit  or  switching  operations, 
and  therefore  the  demurrer  to  the  defendant's  plea  is  sustained. 

2.  In  a  case  arising  under  the  Safety  Appliance  Act  against  a  railroad  engaged 

in  interstate  commerce,  charging  the  hauling  of  a  car  when  the  coupling 
and  uncoupling  apparatus  on  one  end  of  said  car  was  out  of  repair  and 
inoperative,  a  demurrer  to  defendant's  plea  that  said  car  was  merely 
being  moved  in  the  switching  operation  is  sustained. 
8.  It  is  no  defense  to  the  above  charge  to  say:  "It  is  true  the  car  was  not  prop- 
erly equipped,  but  we  are  switching  it  and  other  cars  on  our  line  or  in 
our  yard." 

OPINION  OF  THE  COURT. 

Call,  District  Judge: 

The  declaration  contains  three  causes  of  action — 

(1)  For  hauling  a  St.  L.  &  S.  F.  120729  car  from  Lakeland  northward  when 
coupling  and  uncoupling  apparatus  on  B  end  of  said  car  was  out  of  repair  and 
inoperative. 


890  FEDERAL  SAFETY  APPLIANCE  ACT. 

(2)  For  hauling  a  S.  A.  L.  car  35741  in  and  about  Tampa  when  the  coupling 
and  uncoupling  apparatus  on  B  end  of  said  car  was  out  of  repair  and  inop- 
erative. 

(3)  For  operating  on  its  line  one  train  of  eight  of  its  own  cars,  in  and  about 
Tampa,  when  only  two  cars  had  their  brakes  operated  by  the  engineer  on  the 
locomotive  drawing  said  train,  less  than  85  percent  of  the  cars  of  said  train. 

To  this  declaration  defendant  interposed — 

(1)  The  plea  of  not  guilty. 

(2)  The  special  plea  to  the  second  and  third  causes  setting  up  that  the  cars 
were  "merely  being  moved  about  in  switching  operation  at  the  times  and  places 
in  said  counts  alleged." 

To  the  second  plea  a  demurrer  and  motion  to  strike  was 
interposed  by  the  Government. 

On  the  argument  the  court  was  requested  by  counsel  for 
the  Government  and  defendant  to  rule  particularly  on  the 
demurrer  before  considering  the  motion  to  strike,  and  rec- 
ognizing the  importance  of  the  ruling  the  court  will  accede 
to  this  joint  request  and  consider  the  demurrer  first. 

The  demurrer  and  plea  raises  the  question,  "Is  the  de- 
fendant exempt  from  the  requirements  of  tlie  Safety  Appli- 
ance Act  while  performing  switching  operations?" 

Defendant  relies  upon  Erie  R.  Co.  v.  U.  S.  (187  Fed.  287). 
This  case  seems  to  exempt  railroads  from  the  necessity  of 
complying  with  section  1  of  the  Act  of  1893  and  the  second 
section  of  the  Act  of  1903  while  performing  switching  opera- 
tions. The  opinion  of  Circuit  Judge  Buffington  says:  "It 
is  conceded  by  the  Government  that  this  act  does  not  apply 
to,  or  at  least  has  never  been  enforced,  as  to  switching 
operations."  "Manifestly  such  is  the  reasonable  construc- 
tion of  the  act."  The  Government  in  this  case  does  not 
concede  this  fact,  but,  on  the  contrary,  contends  otherwise, 
and  cites  the  case  of  Chicago  M.  &  St.  P.  Ey.  Co.  v.  U.  S.  (165 
Fed.  Rep.  123),  holding  that  "there  had  been  no  delivery  of 
the  car  in  question  at  the  ultimate  destination,  and  the 
switching  of  it  from  the  time  it  was  taken  by  defendant's 
employees  *  *  *  to  the  time  of  the  discovery  of  the 
defect  was  in  the  course  of  such  delivery  and  constituted  a 
ease  in  interstate  commerce."  This  last  case  had  reference 
to  defective  coupler. 

The  section  of  the  act  which  the  defendant  is  charged 


APPENDIX   G.  g(j]^ 

with  having  viohiled  in  the  third  count  of  the  declaration 
is  as  follows : 

It  shall  be  unlawful  for  any  common  carrier  engaged  in  interstate  commerce 
by  railroad  to  use  on  its  line  any  locomotive  or  to  run  any  train  in  such  traffic 
after  said  date  that  has  not  a  sufficient  number  of  cars  in  it  so  equipi)ed  with 
power  or  train  brakes  that  the  engineer  on  the  locomotive  drawing  such  train 
can  control  its  sjjeed  without  requiring  brakemen  to  use  the  common  hand 
brake  for  that  purpose. 

Section  2  of  the  Act  of  1903  provides  for  the  percentage 
of  cars  in  such  train  which  shall  have  their  brakes  used  and 
operated  by  the  engineer  and  that  the  Interstate  Commerce 
Commission  may  increase  this  minimum  by  proper  order. 

The  object  of  the  Congress  in  passing  the  Safety  Appli- 
ance Acts  was  undoubtedly  to  safeguard  interstate  com- 
merce, the  life  of  the  passengers,  and  the  life  and  limb  of 
the  employees  engaged  therein.  In  doing  this  it  has  seen 
fit  to  prescribe  the  use  of  certain  appliances  for  handling 
trains.  Under  these  acts  it  is  unlawftd  "to  use  any  train 
in  such  traffic"  without  the  safety  appliances  named  there- 
in. Do  these  w^ords  or  the  context  mean  only  while  the 
train  is  moving  from  point  to  point  in  the  journey,  or  do 
they  mean  any  running  of  a  train  of  cars  so  engaged? 

It  would  seem  that  the  movement  of  such  a  train  for  the 
purpose  of  placing  cars  in  position  for  delivery  or  for  the 
purpose  of  making  up  a  train  would  still  be  a  violation  of 
the  act  unless  the  provisions  were  complied  with.  The  ab- 
sence of  power  brakes  from  a  sufficient  number  of  cars  to 
handle  the  train  from  the  engine  would  endanger  the  lives 
of  the  brakemen  on  such  a  train  as  much  as  would  their 
absence  in  the  train  after  it  had  been  made  up.  And  we 
must  not  lose  sight  of  the  fact  that  Congress  intended  to 
protect  this  very  class  in  providing  for  the  use  of  power 
brakes  instead  of  the  hand  brake  in  all  interstate  traffic. 
I  am  constrained  to  think  that  a  train  of  cars  used  in  inter- 
state traffic  falls  within  the  meaning  of  the  act  as  amended, 
whether  used  in  regular  transit  or  switching  operations, 
and  that  therefore  the  demurrer  to  the  second  plea  to  the 
third  count  is  well  taken. 


392  FEDERAL,  SAFETY  APPLIANCE  ACT. 

I  now  consider  the  demurrer  to  the  second  plea  to  the 
second  count  of  the  declaration. 

The  Supreme  Court,  in  Southern  Ry.  Co.  v.  U.  S.  (122  U. 
S.  Sup.  Ct.  Rep.  20),  have  this  to  say  on  page  26,  "For 
these  reasons  it  must  be  held  that  the  original  act  as  en- 
larged by  the  amendatory  one  is  intended  to  embrace  all 
locomotives,  cars,  and  similar  vehicles  used  on  any  railroad 
which  is  a  highway  of  interstate  commerce,"  and  then 
holds  said  act  so  constructed  within  the  powers  of  Con- 
gress, The  decision  in  the  case  of  Erie  R.  v.  U.  S.  and  line 
of  reasoning  can  have  no  bearing  on  the  decision  of  this 
question.  The  charge  in  the  second  count  is  for  a  failure  to 
have  the  car  properlj^  equipped  with  a  coupling  as  required 
by  the  act.  It  is  no  defense  to  this  charge  to  say,  "It  is 
true  the  car  was  not  properly  equipped,  but  we  are  switch- 
ing it  and  other  ears  on  our  line  or  in  our  yards."  There 
is  no  denial  that  the  defendant  was  a  railroad  engaged  in 
interstate  commerce  and  the  cars  mentioned  engaged  in 
interstate  commerce,  except  it  be  by  reason  of  the  switching 
operations,  and  the  Supreme  Court  in  the  case  above  re- 
ferred to  has  construed  the  requirements  of  these  acts  in  no 
uncertain  terms. 

The  demurrer  to  the  second  plea  to  the  second  and  third 
counts  will  therefore  be  sustained. 

The  demurrer  having  been  considered,  the  motion  to 
strike  is  not  considered. 


APPENDIX   G.  g93 

No.  1327. 
UNITED  STATES  OF  AMERICA 

V. 

NORTHERN  PACIFIC  RAILWAY  COMPANY. 

In  the  District  Court  of  the  United  States  for  the  Western  District  of  Wash- 
ington, Southern  Division. 


December  6,  1913. 


1.  If  a  car  is  properly  equipped  and  it  becomes  defective  on  the  line  of  road 

when  in  use,  after  the  discovery  of  the  defect  it  may  be  hauled  to  the 
nearest  available  repair  point,  provided   such  movement  is  necessary  to 
.  make  such  repairs,  and  such  repairs  could  not  be  made  except  at  such 
repair  point. 

2.  The  nearest  available  repair  point  means  the  nearest  available  repair  point 

for  making  repairs  of  the  kind  that  the  car  needs;  that  is,  that  they  cannot 
be  made  before  such  repair  point  is  reached. 

3.  The  movement  of  a  car  by  means  of  chains  instead  of  drawbars,  unless  it 

contains  live  stock  or  perishable  freight,  cannot  lawfully  be  made  farther 
than  to  be  gotten  off  the  main  line,  but  if  before  a  repair  point  is  reached 
there  is  a  track  where  a  car,  that  it  is  necessary  to  handle  in  that  manner 
or  to  haul  it  at  all,  can  be  placed,  that  is  the  place  to  put  it  and  go  out  with 
tools  and  repair  it  or  else  haul  it  into  the  repair  point  in  trains  otherwise  than 
in  revenue  trains  or  in  association  with  other  cars  that  are  commercially 
used. 

Claij  Allen,  United  States  attorney,  and  Monroe  C.  List,  spe- 
cial assistant  to  United  States  attorney,  for  plaintiff. 
Reid,  Quich  &  De  Ponte,  for  defendant. 

INSTRUCTIONS  TO  THE  JURY. 

CusHMAX,  District  Judge: 

At  the  conclusion  of  the  court's  instructions  you  will 
retire  to  make  up  your  verdict  in  this  case  and  take  the 
pleadings  with  you.  It  is  your  duty  to  resort  to  these  plead- 
ings in  order  to  ascertain  exactly  what  the  diflPerence  is 
between  the  plaintiff  and  the  defendant,  but  the  court  may 


894  FEDERAL,  SAFETY  APPLIANCE  ACT. 

at  this  time  outline  to  you  the  issues  as  formed  by  the 
pleadings,  so  3"ou  may  have  them  in  your  mind  fresh  as  the 
court  instructs  you,  in  order  to  help  you,  if  possible,  to  under- 
stand the  law  applicable  to  the  issues. 

The  complaint  of  the  Government  is  set  out  here  in  seven 
causes  of  action.  It  charges  that  on  the  date  mentioned  in 
the  complaint,  at  Auburn,  the  defendant  hauled  two  cars 
described  in  the  first  two  causes  of  action  with  defective 
couplers  chained  togetlier;  that  they  were  so  defective  that 
they  would  not  couple  together  automatically,  so  defective 
that  it  would  be  necessary  for  a  man  to  go  between  the  ends 
of  the  cars  in  order  to  uncouple  them. 

In  the  next  two  causes  of  action  the  Government  com- 
plains of  two  certain  cars  being  used  and  hauled  by  the 
defendant  company  at  Auburn  that  had  the  uncoupling 
levers  missing,  which  rendered  it  necessary  for  men  to  go 
in  between  the  ends  of  the  cars  in  order  to  uncouple  them. 

In  the  last  two  causes  of  action  the  Government  com- 
plains that  there  were  defects  or  missing  or  broken  parts 
of  certain  chains  that  connected  the  lever  with  the  un- 
coupling device  in  three  certain  cars  that  were  being  used 
by  the  company  and  hauled  out  of  Centralia  at  a  certain 
time  named  in  the  complaint,  and  that  those  defects  were 
such  as  to  render  it  necessary  for  men  to  go  in  between  the 
ends  of  the  cars  in  order  to  uncouple  them. 

The  defendant  denies  that  these  cars  were  defective  as 
alleged,  and  alleges  affirmatively  that  they  were  properly 
equipped  when  they  left  the  certain  terminal  points  men- 
tioned in  the  ansAver,  and  that  it  was  necessary  to  haul  them 
where  they  did  haul  tliem  to,  in  order  to  get  them  repaired, 
either  after  these  defects  were  discovered  or  that  it  was  not 
discovered  until  they  passed  a  repair  point,  and  after  they 
were  discovered  they  were  not  hauled  by  any  repair  point  where 
they  could  have  been  repaired.  It  has  been  admitted  that 
these  affirmative  allegations  have  been  denied  by  the  Gov- 
ernment. 

So  far  as  the  law  is  concerned,  the  law  provides  that 
such  a  road  as  the  defendant  is,  the  Northern  Pacific,  which 


APPENDIX    G.  895 

is  a  highway  of  interstate  commerce,  is  prohibited  from 
handling  or  hauling  cars  defective  in  certain  respects ;  that 
it  must  equip  all  of  its  cars  with  coupling  devices  that 
couple  automatically  upon  impact;  that  is,  the  mere  fact  of 
bringing  the  cars  together  and  the  coupling  device  together, 
that  that  impact  couples  the  cars,  and  they  must  be  so 
equipped  that  they  can  be  uncoupled  without  it  being  neces- 
sary for  a  man  to  go  between  the  ends  of  the  cars,  and  if 
they  are  not  equipped  so  they  act  in  this  manner,  then  they 
are  liable  to  a  penalty  for  using  such  cars.  The  law  pro- 
vides, however,  an  exception  or  proviso  to  the  effect  that 
if  a  car  is  properly  equipped  by  tlie  company  and  it  gets 
out  of  order  and  becomes  defective  while  in  use  on  its  line, 
that  after  that  defect  is  discovered  it  may  be  hauled  or 
moved  to  the  nearest  available  repair  point  without  in- 
curring this  penalty,  providing  the  movement  is  necessary 
in  order  to  have  the  repair  made,  and  that  it  cannot  be  made 
except  at  this  repair  point  to  which  it  is  moved.  The  same 
proviso,  however,  contains  this  exception :  That  is,  that 
nothing  in  the  proviso  shall  authorize  the  movement  or 
hauling  cars  by  means  of  chains  instead  of  drawbars,  un- 
less those  cars  are  being  used  to  haul  live  stock  or  perish- 
ables. The  question,  then,  in  this  case,  if  you  find  from  the 
evidence,  if  you  believe  from  the  evidence,  that  those  two 
cars  mentioned  in  the  first  two  causes  of  action  were  hauled 
from  Auburn ;  that  when  they  left  Auburn  they  were  using 
chains  instead  of  drawbars,  and  that  there  was  room  on  the 
tracks  there  at  Auburn  to  switch  them  out,  then  there  is  no 
excuse  for  their  being  used  by  the  defendant  company, 
unless  being  used  to  transport  either  live  stock  or  perish- 
ables. 

Regarding  the  other  two  counts  which  concern  missing 
coupling  and  uncoupling  levers  at  Auburn,  you  will  deter- 
mine whether  or  not  it  was  necessary  to  haul  those  cars 
on  beyond  Auburn,  in  order  to  repair  these  defects,  to  some 
repair  point.  Now,  what  is  necessary,  you  are  to  determine 
as  practical  men.  It  means  what  was  reasonably  necessary, 
operating  a  road  as  practical  men  should,  in  view  of  this 


896  FEDERAL  SAFETY  APPLIANCE  ACT. 

law.  It  does  not  mean  whether  it  would  have  been  possible 
with  the  utmost  endeavor  to  have  repaired  them  there,  tak- 
ing unlimited  time ;  it  does  not  mean  anything  of  that  kind. 
The  law  provides  that  cars,  after  the  discovery  of  defect, 
if  properly  equipped,  the  sense  of  it  being  if  they  are  prop- 
erly equipped  when  they  left  the  last  repair  point,  and  the 
discovery  of  the  defect  has  occurred  while  it  is  in  use  along 
the  line,  it  must  be  taken  to  the  nearest  available  repair 
point.  The  nearest  available  repair  point  means  the  nearest 
available  repair  point  for  making  repairs  of  the  kind  that 
that  car  needs.  Of  course  you  can  understand,  as  far  as  this 
law  is  concerned,  an  engine  comes  within  it.  There  could 
be  an  engine  partly  destroyed,  and  there  might  be  very  few 
repair  points  where  it  could  be  repaired.  I  state  this  ex- 
treme illustration  to  give  you  a  means  of  understanding 
what  the  word  "available"  means  there. 

The  same  instructions  will  apply  to  this  matter  at  Cen- 
tralia,  supposing  that  Centralia  was  a  repair  point,  where 
they  have  skilled  men  for  making  the  repairs  these  cars 
needed  and  the  material  there  for  the  purpose  of  making 
such  repairs,  then  the  company  would  not  be  excused  for 
hauling  the  defective  car  through  that  point  to  reach  some 
other  point  where  it  was  more  convenient  for  them  to  make 
such  repairs,  because  this  proviso  in  the  statute  which  pro- 
vides that  cars  be  removed  to  the  nearest  available  repair 
point,  if  the  repairs  cannot  be  made  except  at  that  repair 
point ;  that  is,  if  they  can  not  be  made  before  they  reach 
there.  If  they  had  equipment  and  men  at  Centralia  cap- 
able of  making  such  repairs,  that  would  be  the  place  to 
make  them.  It  would  be  no  excuse,  because  they  were 
not  keeping  men  to  repair  cars  that  did  not  reach  Tacoma, 
Seattle  or  Vancouver,  or  other  ])laces  where  they  had  more 
complete  esta])lishinents  for  tiiat  purpose,  all  the  time 
qualifying  the  instruction  tliat  the  equipment  at  Centralia 
must  be  suitable  for  making  the  repairs  that  these  cars 
needed. 

There  was  some  testimony,  I  believe,  of  Mr.  Richards, 
regarding  that  at  Auburn,  they  juight  have  had  a  man  there 


APPENDIX   G.  ggj 

for  a  certain  length  of  time  before  these  particular  defects 
mentioned  in  these  causes  of  action  occurred.  Now,  the 
fact  that  they  had  had  repair  men  there  would  not  make 
it  a  repair  point  at  this  time ;  they  would  have  to  have  a 
repair  man  there  at  that  time  to  make  it  a  repair  point. 
The  mere  fact  that  they  occasionally  in  the  past  had  had 
men  there  for  that  purpose  would  not  make  it  a  repair 
point  unless  they  did  have  at  the  time  the  defect  occurred. 

The  court  will  read  to  you  some  written  instructions.  If 
they  repeat  to  some  extent  what  I  have  already  told  you, 
you  wall  not  conclude  that  the  court  is  trying  to  unduly 
impress  upon  you  certain  parts  of  the  case  to  the  exclusion 
of  others : 

In  case  No.  1327  the  Government  is  suing  to  recover 
seven  penalties  on  account  of  the  movements  of  seven  cars 
alleged  to  have  been  defective  in  violation  of  the  safety 
appliance  statutes  of  the  United  States.  The  court  instructs 
with  respect  to  the  law  appertaining  to  the  various  causes 
of  actions,  as  follows: 

In  the  first  cause  of  action  in  case  No.  1327  it  is  alleged 
that  on  December  20,  1912,  the  defendant  hauled  Northern 
Pacific  car  55653  from  Auburn  in  a  northerly  direction  witli 
the  coupling  and  uncoupling  apparatus  on  the  A  end  of 
said  car  inoperative,  the  coupler  being  missing  therefrom, 
and  said  car  being  chained  to  Northern  Pacific  car  36182, 
thus  necessitating  a  man  going  between  the  ends  of  the  cars 
to  uncouple  them  in  violation  of  the  Safety  Appliance  Laws. 

In  the  second  cause  of  action  in  said  case  it  is  alleged  that 
on  December  20,  1912,  the  defendant  hauled  Northern 
Pacific  car  36182  over  its  railroad  from  Auburn,  in  the 
state  of  Washington,  in  a  northerly  direction  when  the 
coupling  and  uncoupling  apparatus  on  the  A  end  of  said 
car  was  inoperative,  the  knuckle  being  missing  from  the 
coupler  on  said  end  of  said  car  and  said  car  being  chained 
to  Northern  Pacific  55653. 

The  defendant  by  its  answer  admits  that  said  cars  were 
hauled  at  the  time  stated,  but  denies  that  thereby  the  acts 
of  Congress  referred  to  were  violated,  in  that  the  ears  were 


g98  FEDERAL   SAFETY   APPLIANCE   ACT. 

properly  equipped  when  placed  in  service,  and  became  de- 
fective and  out  of  repair  after  being  put  in  use,  and  said 
defects  were  not  discovered  until  said  car  reached  Auburn, 
at  which  point  defendant  alleges  it  did  not  have  or  main- 
tain any  means  or  facilities  for  the  repair  of  such  defective 
equipment,  and  that  the  said  cars  were  hauled  to  Seattle 
or  South  Tacoma,  as  the  case  may  be,  being  the  nearest 
repair  point  at  which  facilities  for  the  repair  thereof  were 
located;  and  it  is  alleged  that  such  movement  was  neces- 
sary in  order  that  said  cars  might  be  repaired. 

The  acts  of  Congress  known  as  the  Safety  Appliance 
Laws,  under  which  this  suit  is  brought,  prohibit  the  use  on 
an  interstate  railroad  such  as  the  defendant  of  any  car  not 
equipped  with  couplers,  coupling  automaticallj^  by  impact, 
and  which  can  be  uncoupled  without  the  necessity  of  men 
going  between  the  ends  of  the  cars,  and  prohibit  the  use  of 
cars  not  so  equipped  under  a  penalty  provided  in  the  act. 

You  are  instructed,  however,  that  the  same  statute  which 
prohibits  the  movement  of  defective  equipment  as  above 
explained  also  provides  that  where  any  car  shall  have  been 
properly  equipped  with  automatic  coupling  devices,  and 
such  car  shall  become  defective  while  being  used,  the  same 
may  be  hauled  from  the  place  where  such  equipment  was 
first  discovered  to  be  defective  or  insecure  to  the  nearest 
available  point  where  such  cars  can  be  repaired  without  in- 
curring liability  for  the  penalties  imposed,  provided  such 
movement  was  necessary  to  make  such  repairs  and  such 
repairs  could  not  be  made  except  at  such  repair  point.  But 
it  is  also  provided  in  said  statute  that  the  said  defective 
equipment  shall  not  be  hauled  by  means  of  chains  instead 
of  drawbars,  in  revenue  trains  or  in  association  with  other 
cars  that  are  commercially  used,  unless  such  defective  cars 
contain  live  stock  or  perishable  freight. 

I  believe  when  I  stated  that  rule  to  you  orally  I  neglected 
to  state  that  the  prohibition  was  against  hauling  in  revenue 
trains.  There  has  been  some  argument  made  to  you  in  re- 
gard to  the  harshness  of  this  law  prohibiting  the  move- 
ment   of   cars   by   means   of   chains   instead    of   drawbars. 


APPENDIX  G.  §99 

Neither  the  jury  nor  the  court  can  be  concerned  with  that 
phase  of  the  case.  The  jury  and  the  court  are  sworn  to 
enforce  the  written  laws,  and  if  anybody  is  going  to  remove 
the  harshness  of  the  law,  it  must  be  Congress.  But  the  ex- 
treme case  put  in  argument  does  not  obtain  here.  You  will 
notice  that  this  proviso  also  contains  the  regulation  that  if 
a  car  was  properly  equipped  and  it  became  defective  on  the 
line  of  the  road  when  in  use,  that  after  the  discovery  of  the 
defect  it  might  be  hauled  to  the  nearest  available  repair 
point ;  but,  added  to  that,  is  this,  that  nothing  in  the  proviso 
sliould  authorize  the  hauling  of  a  car  by  means  of  chains 
instead  of  drawbars.  That  means  the  hauling  of  a  car  to  the 
nearest  repair  point.  That  is,  the  exception  engrafted  on 
the  proviso  refers  to  hauling  the  car,  which  was  authorized 
in  the  proviso,  to  the  nearest  repair  point.  If  the  nearest  repair 
point  happened  to  be  the  nearest  place  where  this  car  could 
be  got  off  the  main  line,  then  it  would  authorize  its  being 
hauled  there,  but  if  before  they  reached  the  repair  point 
there  was  a  track  where  they  could  put  a  car  that  it  was 
necessary  to  handle  in  that  manner,  then  that  was  the  place 
to  put  it  and  go  out  with  the  tools  and  repair  it,  or  else  haul 
it  in  to  the  repair  point  in  trains  otherwise  than  in  revenue 
trains,  unless  it  was  hauling  live  stock  or  perishables. 

In  the  third  cause  of  action  in  said  case  No.  1327  it  is 
alleged  that  on  December  20,  1912,  the  defendant  hauled 
Northern  Pacific  car  1022  from  Auburn  in  a  southerly  direc- 
tion when  the  coupling  and  uncoupling  apparatus  on  the 
A  end  of  said  car  was  out  of  repair  and  inoperative,  the  un- 
coupling lever  being  missing  from  said  end  of  said  car. 

In  the  fourth  cause  of  action  in  said  case  No.  1327  it  is 
alleged  that  on  December  20,  1912,  the  defendant  hauled 
Northern  Pacific  car  82751  from  Auburn  in  a  northerly  di- 
rection when  the  coupling  and  uncoupling  apparatus  on  the 
B  end  of  said  car  was  out  of  repair  and  inoperative,  the  un- 
coupling lever  being  missing  from  said  end  of  said  car. 

The  defendant  by  its  answer  to  said  third  and  fourth 
causes  of  action  admits  that  said  cars  were  moved  at  the 
time  stated,  but  denies  that  thereby  the  act  of  Congress  was 


900  FEDERAL   SAFETY   APPLIANCE   ACT. 

violated,  and  alleges  that  said  movement  was  necessary  in 
order  that  said  ears  could  be  repaired,  as  there  existed  no 
repair  point  at  which  said  car  could  be  repaired  when  the 
said  defect  was  discovered ;  and  with  respect  to  car  No. 
82751  mentioned  in  the  fourth  cause  of  action,  defendant 
denies  that  the  same  was  defective  in  any  particular,  and 
alleges  that  even  if  the  same  was  defective  the  movement 
thereof  from  Enumclaw  to  Seattle  was  necessary  in  order 
that  the  same  could  be  repaired. 

You  are  instructed  that  the  acts  of  Congress  under  which 
these  suits  are  brought  prohibit  the  use  on  an  interstate 
railroad  such  as  the  defendant  of  any  car  not  equipped 
with  couplers  coupling  automatically  by  impact  and  which 
can  be  uncoupled  without  the  necessity  of  men  going  be- 
tween the  ends  of  the  cars,  and  the  violation  of  said  statutes 
is  punishable  by  the  penalty  provided  in  the  act. 

The  court  instructs  you  that  the  same  statute  prohibiting 
the  movement  of  defective  equipment  as  above  explained 
also  provides  that  where  any  car  shall  have  been  properly 
equipped  with  automatic  coupling  devices,  and  sufficient 
handholds  and  hand  brakes,  and  such  car  shall  become  de- 
fective while  being  used,  it  may  be  hauled  from  the  place 
where  such  equipment  was  first  discovered  to  be  defective 
or  insecure  to  the  nearest  available  point  where  the  ear  can 
be  repaired,  without  incurring  liability  for  the  penalties 
imposed,  provided  such  movement  is  necessary  to  make  the 
repairs  and  such  repairs  could  not  be  made  except  at  such 
repair  point. 

You  are  instructed  that  if  you  believe  from  the  evidence 
that  the  particular  cars  referred  to  were  properly  equipped 
and  in  a  good  state  of  repair  at  the  time  they  were  placed 
in  service,  or  passed  the  last  repair  point,  and  that  said  cars 
became  defective  and  insecure  after  leaving  such  repair 
point  and  that  such  defects  were  discovered  by  defendant, 
then  you  are  instructed  that  the  defendant  might  lawfully 
move  said  cars  to  the  nearest  repair  point,  such  as  Seattle  or 
South  Tacoma,  in  order  to  repair  the  same,  provided  you 
find    and    ])elieve    from    the    evidence   that    the    movement 


APPENDIX   G.  901 

thereof  to  such  repair  point  was  necessary  in  order  to  re- 
pair said  cars.  And  by  "necessary"  is  not  meant  that  it 
was  impossible  to  repair  said  cars  at  Auburn,  by  sending 
out  repair  car  or  sending  men  from  the  shops  to  repair  the 
same;  but  if  you  believe  that  the  only  practicable  method 
of  railroading  requires  that  such  cars  when  out  of  repair 
should  be  taken  to  the  shops  for  that  purpose,  and  that  it 
was  reasonably  necessary  in  view  of  the  practicable  opera- 
tion of  railroading  to  repair  such  cars  in  the  shops,  then 
the  movement  thereof  for  such  purpose  was  not  a  violation 
of  the  law,  and  you  will  find  for  the  defendant  on  these 
causes  of  action. 

In  the  fifth  cause  of  action  in  said  case  No.  1327  it  is 
alleged  that  on  December  31,  1912,  the  defendant  hauled  on 
its  line  of  railroad  Northern  Pacific  car  85932  from  Cen- 
tralia  in  a  westerly  direction  when  the  coupling  and  un- 
coupling apparatus  on  the  B  end  of  said  car  was  out  of 
repair  and  inoperative,  the  uncoupling  chain  on  said  end  of 
said  car  being  broken. 

In  the  sixth  cause  of  action  in  said  case  No.  1327  it  is 
alleged  that  on  December  31,  1912,  defendant  hauled  North- 
ern Pacific  car  85165  from  Centralia  westerly  when  the  lock 
link  of  the  coupler  on  said  end  of  said  car  was  broken  and 
said  coupler  was  inoperative. 

In  the  seventh  cause  of  action  in  said  case  No.  1327  it  is 
alleged  that  on  December  31,  1912,  defendant  hauled  North- 
ern Pacific  car  85080  from  Centralia  westerly  when  the 
coupling  and  uncoupling  apparatus  on  the  A  end  of  said 
car  was  out  of  repair,  the  uncoupling  cliain  being  broken. 

You  are  instructed  that  the  acts  of  Congress  under  which 
this  suit  is  brought  prohibit  the  use  on  an  interstate  rail- 
road, such  as  the  defendant,  of  any  car  not  equipped  with 
couplers  coupling  automatically  by  impact,  and  which  can 
be  uncoupled  without  the  necessity  of  men  going  between 
the  ends  of  the  cars,  and  any  violation  of  said  statutes  is 
punishable  by  a  penalty  provided  in  the  act. 

The  court  further  instructs  you  that  the  same  statute  also 
provides    that    where    any    car    shall    have    been    properly 


902  FEDERAL  SAFETY  APPLIANCE  ACT. 

equipped  with  automatic  coupling  devices  and  such  car 
shall  become  defective  while  being  used,  that  the  same  may 
be  hauled  from  the  place  where  such  equipment  was  first 
discovered  to  be  defective  or  insecure  to  the  nearest  avail- 
able point  where  such  cars  can  be  repaired,  without  in- 
curring liability  for  the  penalties  imposed,  provided  such 
movement  is  necessary  to  make  the  repairs.  The  instruction 
I  gave  you  regarding  the  Auburn  cars  where  the  levers  were 
missing  would  apply  to  those  I  have  already  given  you  in 
my  oral  instructions.    I  will  not  repeat  them  on  that  point. 

This  is  a  civil  and  not  a  criminal  suit,  and  the  Govern- 
ment is  not,  therefore,  required  to  prove  its  case  beyond  a 
reasonable  doubt,  but  only  by  a  preponderance  of  the  evi- 
dence. 

By  preponderance  of  the  evidence  is  not  meant  neces- 
sarily the  greater  number  of  witnesses,  but  it  means  that 
character  of  evidence  which  to  the  jury  seems  the  most  con- 
vincing and  entitled  to  the  greatest  weight. 

If  the  defendant  on  May  20,  1912,  hauled  Northern  Pa- 
cific cars  55653  and  36182  from  Auburn  in  a  revenue  train 
by  means  of  chains  instead  of  drawbars,  it  can  not  be  ex- 
cused thereby  because  it  could  not  have  made  the  repairs 
at  Auburn  unless,  as  I  have  instructed  you,  the  cars  were 
being  used  to  haul  live  stock  or  perishables,  and  providing 
there  were  means  at  Auburn  for  cutting  these  cars  out  of 
the  train  and  leaving  them  there  on  storage  tracks  or 
switches. 

If  the  defendant  on  December  20,  1912,  hauled  from  Au- 
burn Northern  Pacific  cars  82751  and  1022  when  the  un- 
coupling lever  was  missing  from  end  of  each  car,  it  can  not 
plead  as  a  defense  that  it  was  necessary  to  haul  the  cars 
from  Auburn  for  the  purpose  of  making  the  repairs  if  the 
character  of  defects  were  such  that  they  could  have  been 
repaired  at  Auburn,  as  I  have  already  instructed  you. 

In  considering  the  necessity  of  moving  a  car  from  Auburn 
for  repairs,  the  jury  sliould  take  into  consideration  all  the 
sui'fouiKiitig  (;ii-(;uniKtan('("s,  including  the  particular  char- 
a(;ler  of  llie  defect  coinpljiiiied  of. 


APPENDIX    G.  9Q3 

If  Centralia  was  in  December,  1912,  a  repair  point,  and 
Northern  Pacific  cars  85982,  85165  and  85080  were  hauled 
from  there  at  the  time  and  in  the  defective  condition  com- 
plained of  by  the  Government,  the  verdict  of  the  jury  should 
be  for  the  plaintiff,  providing  Centralia  was  a  repair  point 
available  for  the  repair  of  defects  of  the  kind  which  these 
cars  had  suffered  or  had. 

The  fact  that  a  car  was  later  repaired  after  leaving  the 
repair  point  in  a  defective  condition  is  no  defense,  nor  is  it 
a  defense  for  the  company  to  say  that  it  did  not  as  a  rule 
inspect  all  such  cars  at  such  repair  point.  The  defendant 
must  see  or  know,  at  its  peril,  that  before  it  hauls  these  cars 
from  a  repair  point  that  such  cars  are  ecjuipped  with  auto- 
matic couplers  coupling  upon  impact  and  not  require  the 
men  to  go  between  the  ends  of  the  cars  to  uncouple  them; 
that  is,  providing  that  repair  point  was  a  repair  point  where 
defects  such  as  these  cars  had  could  have  been  reasonably 
repaired. 


United  States  Circuit  Court  of  Appeals  for  the  Ninth  Circuit. 
No.  2258. 


SPOKANE  &  INLAND  EMPIRE  RAILROAD  COMPANY, 
A  CORPORATION,  PLAINTIFF  IN  ERROR, 

V. 

THE  UNITED  STATES  OP  AMERICA,  DEFENDANT  IN 

ERROR. 

In  error  to  the  United  States  District  Court  for  the  Eastern  District  of  Wash- 
ington, Northern  Division. 


Submitted  September  S,  1913.     Decided  January  5,  1914- 


1.  An  interurban  electric  railroad  engaged  in  interstate  commerce  which  runs 
upon  standard  gauge  tracks  large  passenger  coaches,  having  no  grabirons 
or  handholds  on  the  ends  of  such  cars,  in  trains  made  up  according  to 
standard  railroad  rules,  with  markers,  and  run  on  schedules  and  by  train 


904  FEDERAL.   SAFETY   APPLIANCE   ACT. 

orders,  for  a  distance  of  40  miles  over  its  own  right  of  way,  and  which 
has  all  the  characteristics  in  build  and  operation  of  a  standard  steam 
road,  is  subject  to  the  Safety  Appliance  Act  and  is  not  within  the  exception 
in  said  act  of  cars  "used  upon  street  railways"  by  reason  of  the  fact  that 
the  company  uses  the  tracks  of  its  street  car  lines  for  a  mere  trifle  of  the 
distance  between  its  terminal  points  in  order  to  reach  the  center  of  a  large 
city,  which  is  one  of  its  terminals;  and  use  of  cars  in  such  trains  without 
grabirons  or  handholds  is  a  violation  of  the  act  of  Congress. 

2.  The  exception  from  the  operation  of  the  Safety  Appliance  Act  of  cars  "used 

upon  street  railways"  means,  if  not  those  solely  used  on  street  railways, 
at  least  such  as  are  used  on  such  railways  in  street  railway  traffic. 

3.  The  question  as  to  whether  certain  openings  in  the  buffer  on  the  ends  of  cars 

afford  the  security  intended  by  the  act  of  Congress  requiring  grabirons 
or  handholds  on  such  cars  is  not  the  subject  of  expert  testimony,  and  the 
personal  inspection  of  such  openings  by  sensible  jurors  is  a  safer  guide 
to  the  truth  in  regard  to  the  matter  than  the  mere  opinion  of  witnesses. 


Graves,  Kizer  &  Graves,  for  plaintiff  in  error. 

Philip  J.  Dolieriy  and  Oscar  Cain,  for  defendant  in  error. 

Before  Gilbert,  Eoss  and  Morrow,  Circuit  Judges. 


OPINION  OF  THE  COURT. 

Eoss,  Circuit  Judge: 

The  plaintiff  in  error  was  at  the  times  here  in  question  a 
common  carrier  engaged  in  interstate  commerce  by  means 
of  an  electric  railroad  between  the  city  of  Spokane,  in  the 
state  of  Washington,  and  Coeur  d'Alene  City,  in  the  state 
of  Idaho,  and  for  alleged  violations  of  the  act  of  Congress 
known  as  the  Safety  Appliance  Act,  approved  March  2, 
1893  (27  Stats.  531),  as  amended  April  1,  1896  (29  Stats. 
85),  and  as  further  amended  March  2,  1903  (32  Stats.  1911), 
the  present  action  was  brought  by  the  Government,  the  com- 
plaint in  which  action  contains  15  counts,  the  first  12  of 
which  allege  in  substance  that  the  violation  of  the  statute 
consisted  in  hauling  over  its  road  certain  designated  cars 
which  were  not  ])rovi(l('d  with  the  gra])irons  or  handholds 
required  by  the  staliilc,  and  the  last  three  of  which  alleged 
in  substance  the;  violalion  of  1lie  statute  to  have  consisted 


APPENDIX   G.  905 

in  hauling  over  its  road  certain  designated  cars  not  pro- 
vided Avith  the  automatic  couplers  thereby  required. 

The  case  was  tried  with  a  jury,  which  returned  a  verdict 
against  the  railroad  company,  upon  which  judgment  was 
given  against  it,  resulting  in  the  present  writ  of  error  in 
its  behalf. 

It  is  first  urged  that  the  cars  in  question  do  not  come 
within  the  provisions  of  the  Safety  Appliance  Act,  and,  sec- 
ond, that  the  trial  court  erred  in  refusing  to  permit  the 
railroad  company  to  introduce  certain  testimony  and  in  its 
instructions  to  the  jury. 

The  first  point  thus  urged  is  based  upon  the  exception 
contained  in  section  1  of  the  Act  of  March  2,  1903,  except- 
ing from  the  operation  thereof  cars  "which  are  used  upon 
street  railways."    The  section  reads  as  follows: 

Be  it  enacted  by  the  Seriate  and  Ilovse  of  Representatives  of  the  United  States 
of  America  in  Congress  assembled.  That  the  provisions  and  requirements  of 
the  act  entitled  "An  act  to  promote  the  safety  of  emphiyees  and  travelers 
upon  railroads  by  compelling  common  carriers  engaged  in  interstate  commerce 
to  equip  their  cars  with  automatic  couplers  and  continuous  brakes  and  their 
locomotives  with  driving-wheel  l)rakcs,  and  for  other  purposes,"  approved 
March  2,  1893,  and  amended  April  1,  1890,  shall  be  held  to  apply  to  common 
carriers  by  railroads  in  the  Territories  and  the  District  of  ('olumbia,  and  shall 
apply  in  all  cases,  whether  or  not  the  couplers  brought  together  are  of  the  same 
kind,  make,  or  type;  and  in  the  provisions  and  requirements  hereof  and  of  said 
acts  relating  to  train  brakes,  automatic  couplers,  grabirons,  and  the  height 
of  draw  bars  shall  be  lield  to  apply  to  all  trains,  locomotives,  tenders,  cars,  and 
similar  vehicles  used  on  any  railroad  engaged  in  interstate  commerce,  and  in  the 
Territories  and  the  District  of  Columbia,  and  to  all  other  locomotives,  tenders, 
cars,  and  similar  vehicles  used  in  connection  therewith,  excepting  those  trains, 
cars,  and  locomotives  exempted  by  the  provisions  of  section  6  of  said  act  of 
March  2,  18!).'},  as  amended  by  the  act  of  April  1,  1896,  or  which  are  used  upon 
street  railways. 

These  among  other  facts  appear  from  the  undisputed 
evidence : 

In  addition  to  its  interurban  lines,  one  of  which  extends 
from  Spokane  to  Coeur  d'Alene,  a  distance  of  about  40 
miles,  the  plaintiff  in  error  owns  the  street  railway  system 
in  Spokane.  The  interurban  line  extending  to  Coeur  d'Alene 
is  of  standard  gauge  and  of  standard  weight  of  rails.  The 
superintendent  of  that  system  testified,  among  other  things, 
as  follows: 


906  FEDERAL.  SAFETY  APPLIANCE  ACT. 

My  superintendency  is  over  the  interurban  lines.  I  do  not  control  the  street 
railway  lines.  On  the  interurban  line  tickets  are  sold  for  particular  stations 
the  same  as  a  railroad.  We  handle  baggage  for  our  passengers.  Our  trains 
are  made  up  according  to  standard  railroad  rules,  with  markers  to  designate  the 
trains,  and  are  run  on  schedules  and  by  train  orders.  The  employees  who  are 
engaged  in  the  street  car  service  do  not  have  anything  to  do  with  the  operation 
of  the  interurban  service.  They  use  the  same  tracks,  however,  that  come  from 
the  freight  depot  to  the  passenger  terminal  in  the  heart  of  the  city.  We  do 
not  take  passengers  on  the  interurban  trains  witiiin  the  city  limits  exclusively. 
We  receive  passengers  at  points  within  the  city  limits  for  transportation  out- 
side and  drop  passengers  on  interurban  trains  at  various  points  within  the  city, 
but  within  the  city  limits  we  do  no  strictly  street  car  business. 

The  trains  of  the  company  in  which  were  the  cars  here  in 
question  leave  its  passenger  depot  near  the  center  of  Spo- 
kane and  go  out  over  the  tracks  of  the  company's  street 
railroad  system  for  a  little  over  a  mile  to  the  yards  of  the 
company,  where  they  take  the  direct  line  to  Coeur  d'Alene, 
which  is  on  the  company's  private  right  of  way.  Those  of 
the  cars  in  question  which  are  mentioned  in  the  first  12 
counts  of  the  complaint  are  large  passenger  coaches,  having 
no  grabirons  or  handholds  on  the  ends  of  the  cars ;  instead, 
on  their  ends  there  is  a  radial  coupler  and  a  heavy  steel  sill 
or  buifer,  round  on  the  corners,  in  which  buffer  or  sill,  on 
the  passenger  coaches,  there  are,  on  each  side  of  the  coupler, 
openings  measuring  from  18  to  22  inches  in  length  and 
from  21  to  3  inches  in  clearance,  but  on  the  baggage  and 
mail  ears  the  sill  or  buffer  is  solid. 

The  three  cars  mentioned  in  the  last  three  counts  of  the 
complaint,  and  which  it  appears  were  brought  into  the  in- 
terurban service  because  of  a  pressure  of  traffic,  were  street 
railway  cars  which  not  only  had  no  automatic  couplers 
thereon  but,  because  of  their  small  size,  were  incapable  of 
having  them. 

There  is  testimony  to  the  effect — and  none  to  the  con- 
trary— that  the  sharpness  of  the  curves  on  the  street  car 
line  is  such  as  to  make  it  impossible  to  run  cars  over  that 
line  having  grabirons  or  handholds  on  the  end  of  the  cars. 
Conceding  that  to  be  true,  it  is  no  answer  to  the  Govern- 
ment's action  if  the  act  of  Congress  in  question  is  applicable 
to  the  company's  interurbfin  lines.  To  hold  with  the  plain- 
tiff in  error  on  this  point  would  be  to  iiold  that,  because 


APPENDIX  G.  907 

the  company  uses  tlie  tracks  of  its  street  car  lines  for  a 
mere  trifle  of  the  distance  between  its  terminal  points  in 
order  to  reach  the  center  of  the  city  of  Spokane,  its  entire 
interurban  line,  which  has  all  of  the  characteristics  in  build 
and  operation  of  a  standard  steam  road,  is  not  subject  to 
tlie  safety  appliance  act.  That  would,  indeed,  be  a  case  of 
"the  tail  wagging  the  dog." 

We  are  of  the  opinion  that  the  act  of  Congress  does  not 
admit  of  such  an  interpretation,  especially  in  view  of  the 
manifest  purpose  of  the  legislation.  The  exception  from  its 
operation  of  cars  "used  upon  street  railways,"  we  think, 
means,  if  not  those  solely  used  on  street  railways,  at  least 
such  as  are  used  on  such  railways  in  street  railwaij  traffic, 
which  was  not  the  case  here,  according  to  the  testimony  of 
the  company's  own  witnesses. 

In  Moore  et  al.  v.  American  Transportation  Company  (24 
How.  1)  the  Supreme  Court,  in  speaking  of  that  provision 
of  the  act  of  March  3,  1851,  entitled  "An  act  to  limit  the 
liability  of  shipowners,  and  for  other  purposes,"  wiiich 
declared  '"Tbis  act  shall  not  apply  to  the  owner  or  owners 
of  any  canal  boat,  barge,  or  lighter,  or  to  any  vessel  of  any 
description  whatsoever  used  in  rivers  or  inland  navigation," 
said: 

This  word  used  means,  in  the  connection  found,  employed,  and  doubtless  in 
the  mind  of  Congress  was  intended  to  refer  to  vessels  solely  employed  in  river 
or  inland  navigation. 

The  use  of  such  interurban  cars  as  we  have  here,  engaged 
as  they  are  in  interstate  commerce,  for  a  comparatively 
short  and  relatively  inconsiderable  distance  on  a  street  rail- 
way in  order  to  reach  the  city  terminus  of  the  company 
handling  no  street  car  business,  can  hardly  be  considered 
as  intermingling  of  traffic;  but  if  so,  it  w^ould,  in  our  opin- 
ion, no  more  make  inapplicable  the  Safety  Appliance  Act  to 
the  interurban  line  than  does  the  intermingling  of  intra- 
state with  interstate  traffic  defeat  the  power  of  Congress 
over  the  latter.  See  Baltimore  &  Ohio  Railroad  Company 
V.  Interstate  Commerce  Commission  (221  U.  S.  612)  ;  South- 
ern Railway  Company  v.  The  United  States  (222  U.  S.  20). 


908  FEDERAL   SAP^ETY   APPLIANCE   ACT. 

We  also  regard  as  tending  to  support  our  conclusion  in 
this  respect  the  decision  of  the  Supreme  Court  in  the  case 
of  United  States  v.  Atchison,  Topeka  &  Santa  Fe  Railway 
Company  (220  U.  S.  37),  where  that  court  had  under  con- 
sideration that  provision  of  the  act  of  March  4,  1907  (34 
Stats.  1415,  1416),  making  it  unlawful  for  common  carriers 
subject  to  the  act  to  permit  any  employee  subject  thereto 
to  be  on  duty  for  a  longer  period  than  16  consecutive  hours, 
or  after  that  period  to  go  on  duty  again  until  he  has  had 
at  least  10  consecutive  hours  off  duty,  or  8  hours  after  16 
hours'  work  in  the  aggregate,  with  certain  exceptions  not 
necessary  to  be  mentioned,  in  which  case  the  court  said : 

A  trifling  interruption  would  not  be  considered,  and  it  is  possible  that  even 
three  hours  by  night  and  three  hours  by  day  would  not  exclude  the  oflBce  from 
all  operation  of  the  law  and  to  that  extent  defeat  what  we  believe  was  its 
intent. 

The  rulings  and  instructions  of  the  court  below  remain  to 
be  considered.  During  the  trial  the  witness  Robertson  tes- 
tified, among  other  things,  that  he  had  been  employed  for 
23  years  as  brakeman,  switchman,  yardmaster,  and  con- 
ductor, and  had  had  a  great  deal  of  experience  in  coupling 
and  uncoupling  cars,  and  was  familiar  with  the  types  of 
handholds  ordinarily  provided  on  steam  railroads  for  the 
security  of  men  going  between  the  cars,  and  that  generally 
there  is  uniformity  in  such  appliances  and  the  place  of  their 
location ;  that — 

Where  there  is  a  handhold  on  passenger  coaches  on  steam  roads,  it  is  about 
midway  from  the  bottom  of  the  wooden  sill  to  the  bottom  of  the  car  above  the 
track.  The  handholds  that  are  used  on  steam  railroads  are  about  the  height 
of  my  shoulder  from  the  track.  I  am  ,5  feet  10  or  11  inches,  and  the  handhold 
would  strike  me  just  about  the  shoulder.  I  have  examined  the  passenger 
coaches  on  the  Sixikanc  &  Inland  Empire  Railroad  (.'omjjany  with  reference  to 
the  opening  which  it  claims  is  a  handhold  in  the  buffer  or  sill  of  their  cars. 

The  record  proceeds : 

Thereupon  counsel  for  defendant  asked  the  witness  then  on  the  stand  this 
question: 

"What  wouhl  you  say  of  them  as  a  safe  and  proper  appliance;  one  that 
would  tend  to  preserve  men  from  injury  who  might  have  to  go  Ijetween  the 
cars  for  any  purpose?" 

PlaintifiP's    conn.scl    llicrcupoii    o])j('ct('d   to   the    ((uestion, 


APPENDIX   G.  909 

stating  that  "the  question  is,  is  it  a  handhold?"  The  court 
sustained  the  objection  "on  the  ground  that  it  invades  the 
province  of  the  jury;"  that  defendant  was  seeking  to  prove 
by  the  witness  the  very  question  that  the  jury  were  to  de- 
cide. Counsel  for  defendant  thereupon  made  the  following 
offer  of  proof: 

Now,  if  your  honor  pleases,  I  offer  to  prove  by  the  witness  on  the  stand, 
and  I  will  call  other  witnesses,  and  particularly  experienced  railroad  men,  of 
years  of  experience,  to  prove  by  him  and  by  them,  by  questions  and  answers 
addressed  to  them,  that  the  opening  in  the  beam  of  buffer  of  these  electric  cars 
is  intended  to  subserve  and  does  subserve  the  same  purpose  as  the  round  iron 
appliance  that  is  prescribed  by  the  rules  of  the  Interstate  Commerce  Commis- 
sion at  the  present  time  and  is  in  use  on  steam  railroads,  that  it  is  a  better 
appliance  than  those  are  for  the  purpose  of  protecting  men  from  injury  who 
have  to  go  between  cars.  I  offer  to  prove  that  and  to  ask  questions  of  this 
witness  to  that  effect. 

Thereupon  counsel  for  plaintiff  objected  to  the  offer,  and  the  court  sustained 
the  objection  upon  the  ground  that  it  was  not  a  question  for  expert  testimony, 
but  was  a  matter  of  common  knowledge. 

To  which  ruling  the  defendant  excepted. 

Another  witness,  Arlington  Mahan,  who  was  general 
foreman  in  the  shops  of  the  plaintiff  in  error,  testified 
among  other  things  as  follows: 

I  am  familiar  with  the  passenger  coaches  of  that  company  that  have  a  buffer 
at  the  end  and  an  opening  in  it.  I  was  in  the  employ  of  the  company  at  the 
time  these  cars,  or  some  of  them,  were  purchased.  The  openings  were  in  the 
beam  or  sill  when  the  cars  were  received.  There  were  handholds  up  and  down 
the  sides  of  the  cars  when  they  were  received.  There  were  none  on  the  ends  of 
the  cars  in  the  place  where  they  are  put  on  steam  cars.  I  know  of  no  reason 
for  the  openings  on  top  of  the  angle  iron  on  that  beam.  The  men  use  them  for 
grab  irons  whenever  they  have  occasion  to  couple  or  uncouple  cars  or  go  be- 
tween them.  I  have  had  occasion  to  couple  and  uncouple  cars  in  that  yard 
and  other  yards. 

The  record  proceeds: 

Thereupon  counsel  for  defendant  asked  the  following  question: 

"Does  that  opening  in  the  top  of  the  sill  serve  the  same  purpose,  and  is  it 
as  well  fitted  for  the  purpose  of  protecting  the  lives  and  limbs  of  men  who 
have  occasion  to  go  between  the  cars  in  the  exercise  of  their  duties  as  the  form 
of  grabiron  that  is  used  on  steam  cars  that  is  brought  below  the  end  of  the 
car?" 

Counsel  for  plaintiff  objected  to  the  question,  and  the  court  sustained  the 
objection  on  the  following  grounds: 

"I  am  of  the  opinion  that  this  is  one  of  the  cases  where  witnesses  must  state 
facts  and  not  conclusions,  whether  that  is  a  reasonably  safe  appliance  is  within 
the  knowledge  of  the  ordinary  man,  and  no  special  experience  is  required." 


920  FEDERAL   SAFETY   APPLIANCE   ACT. 

Thereupon  defendant  asked  and  was  allowed  an  excep- 
tion to  the  ruling.     The  witness  further  testified: 

I  am  familiar  with  the  form  of  grabiron  or  handhold  that  is  used  on  the 
passenger  cars  of  steam  railroads.  It  is  attached  to  tlie  end  of  the  car,  one  on 
each  corner,  and  projects  downward.  The  Interstate  Commerce  Commission 
requires  that  they  shall  have  a  clearance  of  at  least  2  inches,  preferably  2}^, 
below  the  car  sill.  The  handle  runs  different  lengths.  Tiic  Interstate  Com- 
merce Commission  requires  that  it  shall  be  not  less  than  IG  inches  inside  clear- 
ance. There  is  one  of  these  on  each  side  of  the  draw  bar.  The  opening  in  the 
angle  iron  in  that  buffer  on  the  Spokane  &  Inland  Empire  cars  runs  in  length 
from  16  to  24  inches.  It  is  from  21^  to  2^  inches  wide,  and  there  is  one  of  such 
openings  on  each  side  of  the  draw  bar  on  both  ends  of  the  car,  making  four  in 
all.  It  would  be  impossible  to  put  on  the  passenger  cars  of  the  defendant  such 
grabirons  as  are  in  use  on  the  cars  of  steam  railroads,  because  in  going  around 
the  curves  on  the  city  streets  the  coupler  would  strike  a  brake. 

And  thereupon  the  following  question  was  asked,  and  the  following  matters 
occurred : 

In  your  opinion,  Mr.  Mahan,  and  observation  of  these  cars,  is  the  opening  in 
the  angle  bar  a  better  and  safer  appliance  for  the  safety  of  persons  having 
occasion  to  go  between  the  cars  in  the  discharge  of  their  duties  than  those  that 
are  used  upon  steam  railroads? 

Mr.  Doherty.     The  question  is  objected  to. 

The  Court.     I  will  sustain  the  objection. 

Mr.  Graves.     To  which  we  take  an  exception. 

I  now  offer  to  prove  by  this  witness  and  also  by  other  witnesses  called,  with 
your  honor's  permission,  that  the  opening  in  this  angle  iron  or  sill  or  buffer  is 
a  better  and  safer  appliance,  better  protection,  greater  protection  to  the  men 
who  have  occasion  to  go  between  the  cars  than  any  form  of  grabiron  or  hand- 
hold that  is  known  in  railroad  circles. 

Mr.  DoiiERTY.     I  object  to  that. 

The  Court.  Objection  sustained  on  the  ground  that  it  is  a  question  for  the 
jury. 

Mr.  Gr.a.ves.     To  which  the  defendant  excepts. 

In  its  instructions  to  the  jury  regarding  this  matter  the 
court  told  them  that  the  act  of  Congress  relative  to  safety- 
appliances  provided  that  railroad  cars  "used  in  interstate 
commerce  shall  be  provided  with  secure  grabirons  or  hand- 
holds on  the  ends  and  sides  of  each  car  for  greater  safety 
to  men  in  coupling  and  uncoupling  cars,"  and  instructed 
them  as  follows: 

The  purpose  of  the  act  is  to  afford  greater  security  to  men  coupling  or  un- 
coupling cars  by  reason  of  the  presence  of  grabirons  or  handliolds  than  would 
be  possible  if  there  were  nothing  of  the  sort  on  tlie  ends  of  the  c;irs.  If  you 
should  find  from  the  evidence  in  this  case  that  although  there  might  not  have 
he(!n  on  the  ends  of  the  cars  referred  to  anytliing  whicii  would  be  known  tech- 
nically as  grabirons  or  handliolds,  yet  if  there  were  upon  the  ends  of  such 
cars  an  a[)i)liance  which  could  be  use<l  as  a  grabiron  or  handhold  and  which 
would  afford  as  much  security  to  men  coupling  or  uncoupling  the  cars  as  would 
!>(•  afi'orflcfl  by  having  what  would  be  technit'ally  known  as  graI)irons  or  hand- 
holds on  the  ends  of  the  cjirs,  then  vour  verdict  should  be  for  the  defendant. 


APPENDIX   G.  911 

The  law  does  not  require  any  particular  kind  of  graliiron  or  handliold  to  be 
placed  upon  the  end  of  the  car,  but  only  recjuireH  that  some  such  appliance 
shall  be  placed  there  which  will  afford  the  person  coupling  or  uncoujiling  cars 
equal  security  with  that  which  would  be  ol)taincd  by  the  inelhod  I  have  given. 
(lentlemen,  you  have  heard  the  testimony  in  this  case,  and  you  have  examined 
the  handholds  in  question,  and  it  is  for  you  to  say  from  that  testimony  and 
from  your  personal  examination  of  the  cars  whether  the  appliance  provided  by 
this  company  complies,  with  the  act  of  Congress;  in  other  words,  whether 
it  affords  that  safety  and  protection  to  employees  which  the  law  contemplates 
and  requires.  The  burden  is  upon  the  Government  to  establish  its  case  by  a 
preponderance  of  the  testimony.  If,  from  a  preponderance  of  the  testimony 
offered  herein,  you  are  satisfied  that  the  defendant  has  not  furnished  grab- 
irons  or  handholds  as  I  have  defined  these  terms  to  you  within  the  meaning 
of  the  law,  you  will  find  the  defendant  guilty  on  the  first  12  counts. 

We  are  of  the  opinion  that  the  plaintiff  in  error  has  no 
valid  ground  of  objection  to  these  instructions  and  agree 
with  the  trial  judge  that  the  question  as  to  whether  the 
openings  in  the  buffer  on  the  ends  of  the  cars  aff'orded  the 
security  intended  by  the  act  of  Congress  was  not  the  sub- 
ject of  expert  testimony,  and  that  the  personal  inspection 
of  such  openings  by  sensible  jurors  was  a  safer  guide  to  the 
truth  in  regard  to  the  matter  than  the  mere  opinion  of 
witnesses. 

The  judgment  is  affirmed. 


(United  States  Circuit  Court  of  Appeals,  Fourth  Circuit.) 
No.  1228. 


UNITED  STATES,  PLAINTIFF  IN  ERROR, 

V. 

CHESAPEAKE   &   OHIO  RAILWAY  CO.,  DEFENDANT 

IN  ERROR. 

In  error  to  the  District  Court  of  the  United  States  for  the   Eastern   District 
of  Virginia,  at  Richmond. 


Argued  February  19,  1914.     Decided  February  27,  19U. 

The  Safety  Appliance  Acts  apply  to  equipment  used  on  side  tracks  and  yard 
tracks  as  well  as  main  lines,  and  to  hold  otherwise  would  in  a  large  meas- 
ure give  to  the  acts  such  a  narrow  and  artificial  construction  as  to  deny 
protection  to  those  for  whose  benefit  the  law  was  passed. 


012  FEDERAL.  SAFETY  APPLIANCE  ACT. 

ll.  It  d<efecti\-v  txitiipiiKent  is  tiis«.>»wred.  and  it  can  W  iviviiivtl  at  tlio  jn^int 
of  discovery,  tlieu  it  is  incuml^emt  u|x>a  the  railrvKtd  tximjwny  to  n^jviir 
the  sMue  as  so«jo  as  the  serxTces  trf  a  rejMir  man  cau  l»e  had.  but  if  the 
defect  is  of  such  chaiacter  that  it  cannot  l>e  rf^jviirwl  at  the  jKuut  where 
discovered  such  car  may  be  hauletl  to  the  nearest  avjiilable  jK>int  for  that 
puipoise,  and  must  not  be  othenvise  use^i  lietween  stations  or  iu  yards. 

Before  Peitchard  and  Woods,  Circuit  Judges,  and  Dayton, 
District  Judge, 

D,  Lawrence  Qroner,  United  States  attornev,  and  PhiUp  J, 
Dokerty,  special  assistant  United  States  attorney  {Hiram  M. 
Smithy  assistant  United  States  attorney  on  brief),  for  plaintiff 
in  error. 

David  U,  Leake  (D,  H,  Leake  and  Walter  Leake  on  brief), 
for  defendant  in  error. 


OPINION  OF  THK  COURT. 
Prttchard,  Circuit  Judge: 

This  action  was  begun  by  the  Uiuccvi  States  ou  August  6. 
1912,  to  recover  ^200  from  the  defendant  in  error,  the 
Chesapeake  &  Ohio  Railway  Co.,  for  violation  of  the  Safety 
Appliance  Act.  The  declaration  contained  two  counts,  the 
first  count  relating  to  a  violation  of  the  act  in  the  use  by 
tlie  railway  company  of  New  York,  New  Haven  &  Hartford 
Railroad  ear  No.  75653  while  the  same  was  in  a  defective 
condition,  and  the  second  count  relating  to  a  Southern  Rail- 
way car,  as  to  which  there  is  no  controvei*sy  ou  this  writ  of 
error.  The  jury,  by  direction  of  the  court,  found  against 
the  United  States  as  to  the  first  count  and  for  the  United 
States  as  to  the  second  count.  A  motion  was  made  by  the 
United  States  to  set  aside  the  verdict,  which  was  overruled. 
(The  interstate  character  of  the  railway  aud  the  cars  in 
question  is  admitted."* 

The  evidence,  so  far  as  it  relates  to  the  nrst  couut  of  the 
declaration,  as  to  which,  as  just  stated,  the  jury  found 
against  the  United  States,  briefly,  is  as  follows: 

Car  No.  75653  of  the  New  York,  New  Haven  iS:  Hartford 
Railroad  Co.  was  brought  into  the  Seventeenth  Street  vard 


APPENDIX   G.  9]^3 

of  the  Chesapeake  &  Ohio  Railway  Co.  at  Richmond,  Va., 
on  February  29,  1012.  This  car  formed  part  of  a  train, 
which  arrived  at  the  yard  about  3 :15  p.  m.,  and  on  its 
arrival  was  inspected  by  Government  inspectors,  who  found 
the  chain  at  the  "B"  end  of  the  car  connecting  the  lock 
and  climax  coujjler  broken,  so  that  there  was  no  connection 
between  the  uncoupling  lever  and  the  uncoupling  mech- 
anism, and  in  its  then  condition  it  was  impossible  to  couple 
the  car,  or  open  the  coupler,  otherwise  than  by  going  in 
between  the  cars. 

Shortly  after  this  discovery  by  the  inspectors  the  car  was 
inspected  by  the  railroad  inspector  located  at  the  Seven- 
teenth Street  yard,  and  a  bad  order  mark  was  placed  on  it, 
and  it  was  thereupon  switched  from  point  to  jjoint  several 
times  with  a  number  of  other  cars  and  placed  on  different 
tracks.  Late  in  the  afternoon,  while  it  was  standing  on  the 
track  near  the  scales,  Brakeman  John  Scott  went  in  be- 
tween the  end  of  the  defective  car  and  another  car  for  the 
purpose  of  raising  the  mechanism  and  separating  it  from 
the  other  car,  shortly  after  which  engine  44  coupled  to  the 
car  and  pushed  it  down  from  the  Seventeenth  Street  yard 
on  to  track  Xo.  9  in  the  Broad  Street  yard,  the  trip  consum- 
ing about  10  minutes,  the  distance  being  about  three-quar- 
ters of  a  mile.  The  car,  both  when  it  arrived  at  the  Seven- 
teenth Street  yard  and  later  in  the  day  when  it  arrived  at 
the  Broad  Street  yard,  was  loaded  with  corn  and  sealed,  and 
remained  at  the  Broad  Street  yard  from  February  29  until 
March  12,  without  having  the  repairs  made,  and  on  the 
latter  date  it  was  returned  to  the  Seventeenth  Street  yard 
and  shifted  to  almost  the  identical  point  which  it  had 
occupied  when  it  was  removed  from  there  to  the  Broad 
Street  yard  12  days  before,  and  was  then  and  there  repaired. 

The  witness  for  the  railroad  testified  that  a  lock  block 
and  a  new  lock  chain  were  required  to  make  the  repairs, 
and  that  such  repairs  could  have  been  and  were  eventually 
made  in  about  10  minutes ;  that  it  was  not  necessary  to  take 
the  car  to  the  shops;  that  there  were  more  facilities  for  re- 
pairing the  defects  at  the  Seventeenth  Street  yard  than  at 


924  FEDERAL.   SAP^ETY   APPLIANCE   ACT. 

the  Broad  Street  yard,  and  that  the  inspector  who  actually 
made  the  repairs,  to  wit,  W.  J.  Gibson,  intended  when  he 
put  the  bad  order  mark  on  it  that  it  should  be,  as  later  it 
was,  repaired  at  the  Seventeenth  Street  yard. 

At  the  conclusion  of  the  evidence  both  plaintiff  and  de- 
fendant moved  for  an  instructed  verdict,  and  the  court 
instructed  the  jury  to  find  a  verdict  for  the  defendant  on 
the  first  count,  and  the  case  now  comes  here  on  writ  of 
error. 

It  is  contended  by  the  defendant  below  that  the  following 
proviso  in  the  amendment  of  1910  exempts  it  from  liability 
in  this  instance : 

WTiere  any  car  shall  have  been  properly  equipped,  as  provided  in  this  act 
and  the  other  acts  mentioned  herein,  and  such  equipment  shall  have  become 
defective  or  insecure  while  such  car  was  being  used  by  such  carrier  upon  its 
line  of  railroad,  such  car  may  be  hauled  from  the  place  where  such  equipment 
was  first  discovered  to  be  defective  or  insecure  to  the  nearest  available  point 
where  such  car  can  be  repaired. 

It  is  manifestly  the  purpose  of  this  statute  in  cases  where 
equipment  on  any  car  may  become  defective  to  permit  the 
railroad  company  to  haul  the  same  to  the  nearest  available 
point  where  the  proper  repairs  can  be  speedily  made. 

Any  movement  of  a  defective  car  was  held  to  be  a  viola- 
tion of  the  act  as  originally  passed.  It  was  undoubtedly 
the  purpose  of  Congress  in  adopting  the  amendment  of  1910 
to  somewhat  relax  the  rigid  rule  which  had  theretofore  been 
announced  as  to  the  time  within  which  repairs  of  defective 
cars  should  be  made.  "While  this  is  true,  did  Congress  by 
this  proviso  intend  to  afford  no  protection  to  the  employees 
while  cars  were  being  operated  within  the  yard  limits?  The 
learned  judge  who  heard  this  case  in  the  court  below  was 
of  the  opinion  tliat  the  movements  of  the  car  in  question 
could  be  continued  indefinitely  so  long  as  the  same  were 
exclusively  within  the  yard  limits  of  the  road. 

It  is  a  matter  of  common  knowledge  that  the  danger  inci- 
dent to  coupling  ears  is  as  great,  if  not  greater,  in  switching 
yards  than  on  the  line  between  stations.  The  fact  that  the 
statute  pi'ovides  that  "such  car  may  be  hauled  fi'om  the 
place  where  such  equipment  was  first  discovered  to  be  de- 


APPENDIX   G.  9]^5 

fective  or  insecure  to  the  nearest  available  point  where  such 
car  can  be  repaired,"  clearly  shows  that  it  was  the  purpose 
of  Congress  not  to  permit  unnecessary  delay  in  making  re- 
pairs of  defective  equipment  by  keeping  such  cars  on  side 
tracks  and  moving  them  from  place  to  place  unless  it  should 
be  for  the  purpose  of  hauling  them  to  the  nearest  available 
point  for  the  purpose  of  making  needed  repairs. 

It  can  not  be  reasonably  contended  that  the  movements 
of  the  car  in  question  from  Seventeenth  Street  to  Broad 
Street  and  from  Broad  Street  back  to  Seventeenth  Street 
was  for  the  purpose  of  repairing  the  same,  inasmuch  as  it 
appears  by  the  evidence  that  the  repairs  could  have  been 
made  when  discovered,  and  at  all  events  could  have  been 
made  at  Seventeenth  Street  before  it  was  moved  from  that 
point.  Even  if  it  were  not  the  duty  of  the  inspector  to 
make  the  repairs,  he  certainly  was  charged  with  the  duty 
of  reporting  the  defective  condition  of  the  equipment,  and 
this  he  must  have  done  in  making  his  report  of  the  day's 
work.  Therefore,  it  is  but  fair  to  assume  that  the  com- 
pany had  full  knowledge  of  the  defective  condition  of  this 
equipment  within  at  least  12  hours  from  the  time  the  in- 
spector made  the  discovery.  But,  notwithstanding  this  fact, 
the  equipment  was  permitted  to  remain  in  a  defective  con- 
dition while  the  car  was  being  shifted  from  point  to  point 
at  Broad  Street  and  finally  to  Seventeenth  Street,  and  was 
not  taken  back  for  repairs  until  12  days  thereafter.  During 
this  time  the  employees  of  the  company  whose  duty  it  was 
to  couple  and  uncouple  the  cars  were  continually  subjected 
to  the  dangers  incident  to  the  defective  condition  of  the 
equipment.  Under  this  evidence  can  it  be  said  that  the 
defendant  hauled  this  car  after  it  discovered  its  condition 
"to  the  nearest  available  point  where  such  car  could  be 
repaired"? 

District  Judge  Sessions  in  the  ease  of  United  States 
against  Pere  Marquette  Railroad  Co.,  in  referring  to  the 
contention  that  in  that  case  the  movement  of  the  train  in 
question  Avas  what  is  known  as  a  "switching  movement," 
and  that  under  this  proviso  did  not  apply,  said: 


915  FEDERAL,  SAFETY  APPLIAXCE  ACT. 

The  name  given  to  the  movement  is  of  no  importance,  and  its  character  is 
not  controlling.  That  the  use  of  a  car  whose  coupling  apparatus  is  inoperative 
upon  the  tracks  of  a  railroad  company  engaged  in  interstate  commerce  and  in 
connection  with  such  commerce,  either  in  a  switch  yard  or  in  actual  road  ser- 
vice upon  the  main  line,  is  a  violation  of  the  Safety  Appliance  Acts  is  no  longer 
an  open  question. 

To  hold  that  this  proviso  applies  only  to  trains  operated 
on  lines  between  stations  would  in  a  large  measure  deny 
protection  to  those  for  whose  benefit  the  law  was  passed 
and  give  a  narrow  and  artificial  construction  to  the  statute. 

We  do  not  deem  it  necessary  to  review  the  many  authori- 
ties cited  by  counsel  for  the  Government,  as  well  as  those 
cited  by  defendant,  further  than  to  say  that  we  have  care- 
fully considered  the  case  of  Erie  Eailroad  Co.  v.  United 
State  (197  Fed.  287),  decided  by  the  Circuit  Court  of  Ap- 
peals for  the  Third  Circuit.  That  ease  supports  the  de- 
fendant's contention,  notwithstanding  the  facts  upon  which 
it  is  based  differ  somewhat  from  the  case  at  bar.  While  we 
have  the  greatest  respect  for  that  court  in  its  decision,  yet 
a  careful  consideration  of  the  statute  impels  us  to  dissent 
from  the  views  therein  expressed. 

To  hold  that  the  words  "while  such  car  was  being  used 
by  such  carrier  upon  its  line  of  railroad"  is  intended  to 
limit  the  statute  in  its  application  to  the  main  line,  would 
in  a  large  degree  nullify  the  act.  When  we  consider  the 
statute  in  regard  to  safety  appliances,  we  are  forced  to  the 
conclusion  that  it  must  have  been  the  intention  of  Congress 
that  the  same  should  apply  to  sidetracks  and  yard  tracks 
as  well  as  the  main  lines. 

The  requirement  that  a  car  with  defective  equipment 
may  be  hauled  from  where  such  eciuipmcnt  is  first  dis- 
covered to  be  defective  or  insecure  "to  the  nearest  available 
point  w^here  such  car  can  be  repaired"  was  evidently  de- 
signed for  the  purpose  of  giving  the  railroad  company  suf- 
ficient time  within  which  to  nuike  such  repairs  as  could 
only  be  made  at  the  shops  of  the  company,  or  at  a  point 
where  material  and  appliances  were  kept  for  that  purpose. 
However,  in  Uiis  instance,  it  is  admitted  by  the  railroad 
that  it  was  not  necessary  to  haul  the  car  in  (juestion  to  the 


APPENDIX   G. 


917 


shops  or  to  any  particular  point  in  order  to  repair  the  de- 
fective equipment.  It  could  have  been  repaired  at  the 
Seventeenth  Street  j^ard,  where  the  defect  was  discovered, 
or  it  could  have  been  repaired  at  the  Broad  Street  yard ; 
and  no  excuse  is  shown  for  not  making  the  repairs  while 
the  car  was  kept  at  either  of  these  places.  In  other  words,  we 
think  the  statute  contemplates  tliat  if  when  the  defective  equip- 
ment is  discovered  it  can  be  repaired  at  the  point  where  the  dis- 
covery is  first  made,  then  it  is  incumbent  upon  the  railroad 
company  to  repair  the  same  as  soon  as  the  services  of  a 
repair  man  can  be  had,  but  if  the  defect  is  of  such  char- 
acter that  it  can  not  be  repaired  at  the  point  where  dis- 
covered, such  car  may  be  hauled  to  the  nearest  available 
point  for  that  purpose,  and  not  used  in  the  meantime  on 
its  lines  between  stations  or  in  its  yards. 

The  failure  on  the  part  of  a  railroad  company,  as  in  this 
instance,  to  repair  defective  equipment,  as  to  the  existence 
of  which  the  company  had  had  knowledge  for  the  space  of 
12  days,  during  which  time  such  car  had  been  moved  from 
one  place  to  another,  from  time  to  time,  on  its  tracks,  indi- 
cates that  it  was  unmindful  of  the  duty  imposed  upon  it  by 
the  statute. 

We  are  therefore  of  the  opinion  that  the  conduct  of  the 
railroad  in  moving  its  car  from  Seventeenth  Street  to 
Broad  Street  and  placing  it  on  the  sidetrack  where,  from 
the  very  nature  of  things,  it  was  required  to  be  moved  fre- 
quently; and  this,  coupled  with  the  failure  on  the  part  of 
the  railroad  company  to  make  the  needed  repairs  until  it 
was  moved  back  to  Seventeenth  Street  12  days  thereafter, 
was  a  violation  of  the  act  under  which  this  suit  was  in- 
stituted. 

For  the  reasons  stated,  we  are  of  opinion  that  the  court 
below  erred  in  directing  a  verdict  in  favor  of  the  defendant 
on  the  first  count,  therefore  the  judgment  of  the  lower 
court  is  reversed. 


APPENDIX  H. 

DECISIONS  UNDER  THE  HOURS  OF   SERVICE  ACT. 


(In  the  United  States  Circuit  Court  of  Appeals,  Eighth  Circuit.) 
(No.  3998— September  Term,  1913.) 


UNITED  STATES  OF  AMERICA  v.  SOUTHERN  PACIFIC 

COMPANY. 

(In  Error  to  the  District  Court  of  the  United  States  for  the  District  of  Utah.) 
Decided  November  13,  1913. 


Philip  J.  Dolierty  (with  whom  Iliram  E.  Booth,  United 
States  attorney,  was  on  the  brief),  for  plaintiff  in  error. 

George  H.  Smith  (with  whom  P.  L.  }YiUiams,  William  F. 
Herrin  and  John  V.  Lyle  were  on  the  brief),  for  defendant  in 
error. 

Before  Hook  and  Carland,  Circuit  Judges,  and  Van  Val- 
KENBURGH,  District  Judge. 

OPINION  OF  THE  COURT. 

Carland,  Circuit  Judge,  delivered  the  opinion  of  the  court. 

The  United  States  brought  this  action  to  recover  from 
the  Southern  Pacific  Co.  (hereinafter  called  the  "Com- 
pany") the  sum  of  $6,000  as  penalties  for  the  violation  of 
an  act  to  promote  the  safety  of  employees  and  travelers 
upon  railroads  by  limiting  the  hours  of  service  of  employees 
tliereon.  (34  Stat.  1415.)  The  complaint  contained  12 
counts  on  each  of  which  a  penalty  of  $500  was  demanded. 
At  the  li'ial,  the  facts  being  undisputed,  the  court  directed 
018 


APPENDIX   H.  9][9 

the  jury  to  return  a  verdict  for  the  Company,  The  United 
States  brings  the  case  here  assigning  as  error  such  ruling 
of  the  court. 

The  facts  appearing  at  the  trial  are  as  follows:  The  Com- 
pany is  a  common  carrier  engaged  in  interstate  commerce 
in  the  state  of  Utah.  At  Ogden,  in  said  state,  it  maintains 
a  train  dispatcher's  office  continuously  operated  night  and 
day.  H.  H.  Hoover,  C.  M.  Sewall,  F.  F.  Small,  and  Edward 
Miller  were  employees  of  the  Company  in  said  office,  en- 
gaged in  using  the  telegraph  to  report,  transmit,  receive, 
and  deliver  orders  pertaining  to  or  affecting  train  move- 
ments. The  business  of  train  dispatching  at  Ogden  in  the 
months  of  August  and  September,  1912,  was  performed  by 
a  chief  train  dispatcher,  who  had  charge  of  the  office  and 
supervision  and  direction  of  six  operators  or  train  dis- 
patchers employed  in  the  same.  The  division  of  railroad 
over  which  this  office  had  jurisdiction  extended  from  Ogden, 
Utah,  to  Carlin,  Nev.,  a  distance  of  149  miles.  The  six 
train  dispatchers  performed  their  duties  by  working  eight- 
hour  "tricks,"  so  called.  The  first  trick  extended  from 
7  o'clock  a.  m.  to  3  p.  m. ;  the  second  from  3  o'clock  p.  m. 
to  11  o'clock  p.  m. ;  and  the  third  from  11  o'clock  p.  m.  to 
7  o'clock  a.  m.,  two  dispatchers  to  each  trick.  The  chief 
dispatcher  was  an  executive  officer  under  the  superintendent 
of  division,  and  had  no  duty  to  perform  with  reference  to 
the  actual  operation  of  the  telegraph.  However,  he  could 
operate  the  telegraph.  An  operator  or  train  dispatcher  by 
the  name  of  Johnson,  employed  in  the  Ogden  office  by  the 
Company,  on  August  27,  1912,  became  suddenly  ill  and  did 
not  report  for  duty  till  September  2.  By  reason  of  the 
Illness  of  Johnson,  the  operators  hereinbefore  mentioned 
were  required  to  work  as  follows: 

H.  H.  Hoover  from  3  p.  m.  August  27,  1912,  to  3  a.  m. 
August  28,  1912. 

H.  H.  Hoover  from  3  p.  m.  August  28,  1912,  to  3  a.  m. 
August  29,  1912. 

H.  H.  Hoover  from  3  p.  m.  August  29,  1912,  to  3  a.  m. 
August  30,  1912. 


920  HOURS    OF    SERVICE    ACT. 

C.  M.  Sewall  from  3  a.  m.  August  29,  1912,  to  3  p.  m. 
August  29,  1912. 

C.  M.  Sewall  from  3  a.  m.  August  30,  1912,  to  3  p.  m. 
August  30,  1912. 

C.  M.  Sewall  from  3  a.  m.  August  31,  1912,  to  3  p.  m. 
August  31,  1912. 

F.  F.  Small  from  3  p.  m.  August  30,  1912,  to  3  a.  m. 
August  31,  1912. 

F.  F.  Small  from  3  p.  m.  August  31,  1912,  to  3  a.  m. 
September  1,  1912. 

F.  F.  Small  from  3  p.  m.  September  1,  1912,  to  3  a.  m. 
September  2,  1912. 

Edward  Miller  from  3  a.  m.  September  1,  1912,  to  3  p.  m. 
September  1,  1912. 

Edward  Miller  from  3  a.  m.  September  2,  1912,  to  3  p.  m. 
September  2,  1912. 

Edward  Miller  from  3  a.  m.  September  3,  1912,  to  3  p.  m. 
September  3,  1912. 

The  chief  train  dispatcher  after  diligent  effort  was  un- 
able to  obtain  an  operator  or  train  dispatcher  to  take  the 
place  of  Johnson  while  he  was  ill.  A  telegraph  operator 
merely,  without  further  training  in  a  train  dispatcher's 
office,  is  incompetent  to  perform  the  duties  of  train  dis- 
patcher. Of  the  six  operators  employed  in  the  office  at 
Ogden  at  the  time  in  question,  all  had  been  continuously 
employed  from  15  months  to  8  years,  and  during  a  period 
of  seven  years  immediately  preceding  the  trial  below  but 
two  occasions  had  arisen  where  disj^atchers  unexpectedly 
failed  to  report  for  duty. 

The  statute  under  which  the  United  States  claims  a  lia- 
bility is  established  against  the  Company  by  the  foregoing 
facts,  is  found  in  the  first  proviso  of  section  2,  chapter  2939, 
34  Statute  1415.    So  far  as  material,  it  reads  as  follows: 

That  it  shall  be  unlawful  for  any  common  carrier  *  *  *  to  require  or 
permit  any  *  *  *  operator,  train  (lisjiatclicr,  or  other  employee  who  by  the 
use  of  tclcfjraph  or  t('lcj)liono  dispatches,  rej)()rts,  transmits,  receives,  or  delivers 
orders  perlaiiiiiifj  to  or  affcfliii^  train  movemiMits  *  *  *  to  be  or  remain 
on  duty  for  a  lonj^er  period  than  !)  hours  in  any  2-1-liour  period  in  *  *  * 
stations  continuously   operated   nifjlit  and   day     *     *     *     except  in  case  of 


APPENDIX   n.  921 

emergency,  when  the  employees  named  *  *  *  niay  be  permitted  to  be 
and  remain  on  duty  for  4  additional  hours  in  a  24-hour  period  not  exceeding 
3  days  in  any  week. 

Applying  the  law  to  the  facts,  the  question  arises:  Did 
the  illness  of  Johnson,  coupled  with  the  inability  of  the 
Company  to  obtain  a  man  to  take  his  place  during  the  time 
he  was  ill,  constitute  an  emergency  within  the  meaning  of 
the  statute,  so  as  to  relieve  the  Company  from  the  penalties 
which  would  otherwise  result  from  requiring  Hoover,  Sewall, 
Small  and  Miller  to  remain  on  duty  for  a  longer  period 
than  9  hours  in  a  24-hour  period? 

It  does  not  appear  that  Congress  used  the  word  "emer- 
gency" in  any  other  than  its  ordinary  or  popular  sense. 
Webster  defines  the  word  ''emergency"  as  "Any  event  or 
occasional  combination  of  circumstances  which  calls  for  im- 
mediate action  or  remedy;  pressing  necessity;  exigency." 

The  Century  Dictionary  defines  the  word  as  follows: 
"Sudden  or  unexpected  happening;  an  unforeseen  occur- 
rence or  condition." 

The  definition  as  given  by  the  Century  Dictionary  was 
approved  in  Sheean  v.  City  of  New  York  (75  N.  Y,  Supp. 
802). 

In  support  of  the  contention  of  the  United  States,  the 
following  cases  are  cited:  United  States  v.  Kansas  City 
Southern  (202  Fed.  828)  ;  B.  &  0.  E.  E.  v.  I.  C.  C.  (221  U. 
S.  612)  ;  Ellis  V.  United  States  (206  U.  S.  257)  ;  United  States 
V.  Garbish  (222  U.  S.  261). 

The  case  first  cited  was  an  action  under  the  first  clause 
of  section  2  of  the  law  now  under  consideration.  This  court 
in  that  case  simply  held  that  all  the  usual  causes  of  delay 
incident  to  the  operation  of  trains  standing  alone  would  not 
excuse  the  Railroad  Company  under  the  terms  of  the  first 
proviso  of  section  3,  but  that  the  Company  must  further 
show  that  such  delays  could  not  have  been  foreseen  and 
prevented  by  the  high  degree  of  diligence  demanded.  Of 
course  this  must  be  so.  If  the  usual  causes  of  delay  incident 
to  operation  were  to  excuse,  then  the  statute  would  be 
wholly  ineffective  to  accomplish  its  purpose. 


922  HOURS    OF    SERVICE    ACT. 

B.  &  0.  R.  R.  V.  I.  C.  C.  is  a  case  in  which  the  Supreme 
Court  held  that  the  law  in  question  was  a  constitutional 
exercise  of  the  power  of  Congress. 

Ellis  V.  United  States  is  a  case  where  the  Supreme  Court 
decided  that  the  disappointment  of  a  contractor  with  re- 
gard to  obtaining  some  of  his  materials,  did  not  create  an 
extraordinary  emergency  within  the  meaning  of  the  act  of 
August  1,  1892  (27  Stat.  340).  In  disposing  of  this  particu- 
lar question,  the  court  said: 

He  found  more  diflSculty  than  he  expected,  although  he  expected  some  trouble 
in  getting  certain  oak  and  pine  piles  called  for  by  the  contract,  and,  having 
been  delayed  by  that  cause,  he  permitted  his  associate  in  the  business  to  employ 
men  for  nine  hours,  in  the  hurry  to  get  the  work  done.  The  judge  instructed 
the  jury  that  the  evidence  did  not  show  an  "extraordinary  emergency"  within 
the  meaning  of  the  act.  The  judge  was  right  in  ruling  upon  the  matter.  Even 
if,  as  in  other  instances,  a  nice  case  might  be  left  to  the  jury,  what  emergencies 
are  within  the  statute  is  me.-ely  a  constituent  element  of  a  question  of  law, 
since  the  determination  of  that  element  determines  the  extent  of  the  statutory 
prohibition  and  is  material  only  to  that  end. 

United  States  v.  Garbish  is  a  case  wherein  under  the  act 
last  cited  the  Supreme  Court  held  that  the  extraordinary 
emergency  which  excuses  is  not  one  that  is  contemplated 
and  inheres  necessarily  in  the  work.  In  so  deciding  the 
court  said: 

And,  besides,  the  extraordinary  emergency  which  relieves  from  the  act  is 
not  one  that  is  contemplated  and  inheres  necessarily  in  the  work.  United 
States  r.  Sheridan-Kirk  Contract  Co.  (149  Fed.  809).  It  is  a  special  occurrence, 
and  the  phrase  used  emphasizes  this.  It  is  not  an  emergency  simply  which  is 
expressed  by  it,  something  merely  sudden  and  unexpected,  but  an  extra- 
ordinary one,  one  exceeding  the  common  degree. 

It  is  manifest  that  none  of  the  cases  cited  decides  the 
question  at  issue  in  the  present  case.  The  law  now  being 
considered  does  not  recjuire  an  extraordinary  emergency, 
but  simply  an  emergency.  And  we  think  the  facts  as  they 
appear  in  the  record  warranted  the  court  in  deciding  that 
an  emergency  within  the  meaning  of  the  statute  existed. 
As  was  said  in  the  Ellis  case,  supra,  "what  emergencies 
are  within  the  statute  is  merely  a  constituent  element  of  a 
question  of  law,  since  the  determination  of  that  element 
determines  the  extent  of  the  statutory  prohibition  and  is 
mat  •■rial  only  lo  1  hat  end." 


APPENDIX   H.  923 

It  is  claimed  by  counsel  for  the  United  States,  however, 
that  the  Company  should  have  had  extra  train  dispatchers 
under  pay  ready  to  take  the  place  of  Johnson  when  he  be- 
came ill.  The  law  recognizes  the  fact  that  emergencies  may 
arise.  Congress  no  doubt  used  the  word  "emergency"  with 
reference  to  the  business  of  dispatching  trains  when  con- 
ducted in  the  exercise  of  the  ordinary  care  recjuired  in  such 
business.  If  Congress  had  intended  that  the  railroads  should 
provide  against  all  emergencies,  then  there  was  no  use  in 
granting  to  the  Company  the  right  to  require  longer  hours 
in  the  case  of  emergency.  If  we  decide  that  it  was  the  duty 
of  the  Company  to  keep  extra  train  dispatchers  under  pay 
to  take  the  place  of  those  who  became  suddenly  ill,  how 
many  should  it  have  kept  in  the  present  case — one  or  six? 
And  as  the  extra  dispatcher  or  dispatchers  might  also  have 
become  ill,  should  not  the  Company  also  provide  for  that 
contingency?  Speaking  generally,  sickness  and  death  are 
the  common  lot  of  all  and  must  be  expected,  but  within  the 
expectancy  of  life  health  and  not  sickness  is  the  general 
rule.  In  view  of  the  showing  that  for  a  period  of  seven 
years  only  one  other  unexpected  absence  of  an  employee  on 
account  of  illness  or  other  cause  had  occurred,  we  think  the 
Company  was  not  so  negligent  in  not  having  an  extra  dis- 
patcher on  hand  to  take  Johnson's  place  as  to  deprive  it 
of  the  privilege  granted  by  the  law.  No  question  is  made 
as  to  the  necessity  of  the  performance  of  the  work  required 
of  the  employees  mentioned.  We  do  not  think  the  chief 
train  dispatcher  was  required  under  the  circumstances  to 
perform  the  work  of  Johnson,  as  that  would  have  left  the 
business  of  the  office  without  superintendence  or  supervi- 
sion. We  also  think  that  the  word  "week"  in  the  statute 
was  intended  to  mean  a  period  of  seven  days  and  not  neces- 
sarily a  calendar  week,  and  that  the  statute  is  not  violated 
if  no  employee  worked  overtime  more  than  three  days  out 
of  seven. 

We  do  not  decide  that  sudden  illness  in  all  cases  or  stand- 
ing alone  would  constitute  an  emergency.  Each  case  must 
depend  upon  its  own  facts.     Sudden  illness  might  continue 


924  HOURS    OF    SERVICE    ACT. 

for  sueli  a  number  of  days  as  to  cease  to  be  an  emergency. 
Under  our  ruling  in  Kansas  City  Southern  case,  supra — to 
the  effect  that  the  statute  in  question,  being  highly  remedial, 
should  be  liberally  construed  so  that  its  purposes  may  be 
effected — we  think  the  illness  of  Johnson,  coupled  with  the 
inability  of  the  Company  to  secure  other  help  during  the 
time  he  was  sick,  constituted  an  emergency  within  the 
meaning  of  the  law. 
Judgment  affirmed. 


(United  States  Circuit  Court  of  Appeals,  Fourth  Circuit.) 
No.  1191. 


UNITED  STATES  OF  AMERICA 

V. 

ATLANTIC  COAST  LINE  RAILROAD  COMPANY. 

(In  Error  to  the  District  Court  of  the  United  States  for  the  Eastern  District  of 
South  Carolina,  at  Columbia.) 


Argued  November  21,  1913.     Decided  February  3,  19H. 

In  a  case  arising  under  the  Federal  Hours  of  Service  Act  (34  Stat.,  p.  1415) 
where  the  question  presented  is  whether  a  railroad  telegraph  office  which 
is  regularly  kept  open  for  business  from  6:30  a.  m.  until  10:15  p.  m.,  and 
never  later  than  11  p.  m.,  is  a'  "continuously  operated  night  and  day" 
office  within  the  meaning  of  the  proviso  in  section  2  of  said  act:  Held, 
That— 

1.  The  Federal  Hours  of  Service  Act  is  not  a  criminal  statute,  and  therefore  is 

not  governed  by  the  rule  of  strict  construction;  it  is  rather  a  remedial 
statute,  which  should  be  so  construed,  if  its  language  permits,  as  to  best 
accompli.sh  the  protective  purpose  for  which  it  was  enacted,  the  end  to 
be  attained  by  the  law  being  a  guide  to  its  interpretation. 

2.  The  classification  of  an  office  is  fixed  by  the  length  of  time  it  is  kept  open, 

and  not  in  the  least  by  the  nature  of  the  duties  performed,  if  only  those 
duties  include  the  handling  of  train  orders  as  occasion  may  require. 

3.  The  statute  covers  all  telegraph  offices  in  which  interstate  train  orders  are 

handled. 

4.  The  objects  of  the  liiw  require  llifit  a  prefercnfo  be  accorded  to  a  construc- 

tion wliicli  recognizes  the  Icgihljilive  intent  to  j)ermit  13  hours  of  service 


APPENDIX   H. 


925 


in  offices  kept  open  only  such  number  of  hours  in  the  aggregate  as  do  not 
materially  or  substantially  exceed  the  length  of  an  ordinary  day  and  to 
prohibit  more  than  9  hours'  service  in  offices  kept  open  such  number  of 
hours  in  the  aggregate  as  necessarily  include  a  material  or  substantial 
portion  of  tlie  night. 

5.  The  statute  assumes  that  all  offices  will  be  operated  during  the  daytime, 

and  for  those  operated  during  the  daytime  only  it  makes  the  13-hour 
requirement;  for  those  which  are  operated  during  the  daytime  with  a 
continuance  of  operation  into  the  night  it  makes  the  9-hour  requirement. 

6.  The  office  in  question  falls  into  the  9-hour  class. 

Before  Knapp  and  Woods,  Circuit  Judges,  and  Rose,  District 
Judge. 

Ernest  F.  Cochran,  United  States  attorney,  and  Philip  J. 
Dohertij,  special  assistant  United  States  attorney,  for  plaintiff 
in  error,  and  George  B.  Elliott  {P.  A.  Willcox  on  brief)  for 
defendant  in  error. 

OPINION  OF  THE  COURT. 

Knapp,  Circuit  Judge: 

This  suit  is  brought  by  the  United  States  to  recover  pen- 
alties for  alleged  violations  of  the  act  of  Congress  approved 
March  4,  1907,  commonly  known  as  the  Hours  of  Service 
Law,  and  the  employees  directly  concerned  are  telegraphers 
in  the  service  of  defendant  in  error  at  Bennettsville,  S.  C. 

From  the  stipulated  facts  on  which  the  action  was  tried 
it  appears  that  the  telegraph  office  at  the  station  named  was 
regularly  kept  open  for  business  from  6  :30  a.  m.  to  10 :15 
p.  m.,  or  15  hours  and  45  minutes  in  each  24-hour  period; 
that  two  operators  were  employed  at  this  station,  one  of 
whom  was  required  to  be  on  duty  from  6 :30  a.  m.  to  12 
o'clock  noon,  and  from  1  p.  m.  to  6:30  p.  m.,  and  the  other 
known  as  a  "second-trick"  operator,  from  10:15  a.  m,  to 
5:30  p.  m.,  and  from  6:30  p.  m.  to  10:15  p.  m.,  or  a  total  of 
11  hours  in  each  case ;  that  the  office  in  question,  during  the 
period  covered  by  the  suit,  was  closed  for  business,  and  the 
operators  entirely  relieved  from  duty,  from  10  :15  p.  m.  to 
6:30  a.  m.,  or  8  hours  and  15  minutes,  except  on  a  few  speci- 
fied dates  when  the  second-trick  operator  remained  on  duty 


926  HOURS    OF    SERVICE    ACT. 

from  15  to  45  minutes  after  10 :15  p.  m. ;  that  during  the 
hours  from  6 :30  a.  m.  to  10 :15  p.  m.,  when  the  office  was 
kept  open  for  business  as  aforesaid,  the  operators  employed 
therein,  by  the  use  of  telegraph  and  telephone,  received  and 
delivered,  more  or  less  frequently,  orders  relating  to  or 
affecting  the  movement  of  trains  engaged  in  interstate  com- 
merce ;  and  that  these  operators  received  such  train  orders 
from  the  office  of  the  chief  dispatcher,  which  was  located 
at  Florence,  S.  C,  and  kept  continuously  open  throughout 
the  24  hours. 

The  question  to  be  decided  is  whether  the  defendant  in 
error,  by  requiring  or  permitting  its  Bennettsville  operators 
to  be  on  duty  during  the  11  hours  above  described,  to  say 
nothing  of  the  instances  of  somewhat  longer  hours,  violated 
the  proviso  of  section  2  of  said  act,  which  reads  as  follows: 

Provided,  That  no  operator,  train  dispatcher,  or  other  employee  who,  by  the 
use  of  the  telegraph  or  telephone,  dispatches,  reports,  transmits,  receives,  or 
dehvers  orders  pertaining  to  or  affecting  train  movements  shall  be  required  or 
permitted  to  be  or  remain  on  duty  for  a  longer  period  than  9  hours  in  any  24- 
hour  period  in  all  towers,  ofEces,  places,  and  stations  continuously  operated 
night  and  day,  nor  for  a  longer  period  than  13  hours  in  all  towers,  ofBces,  places, 
and  stations  operated  only  during  the  daytime,  except  in  case  of  emergency, 
when  the  employees  named  in  this  proviso  may  be  permitted  to  be  and  remain 
on  duty  for  4  additional  hours  in  a  24-hour  period  of  not  exceeding  3  days  in 
any  week. 

As  the  operators  in  question  were  customarily  kept  on 
duty  for  11  hours  out  of  the  24,  and  sometimes  a  little 
longer,  it  is  apparent  that  defendant  in  error  was  charge- 
al)le  with  repeated  violations  of  the  statute,  if  the  Bennetts- 
ville office  belongs  in  the  class  of  offices  "continuously  op- 
erated night  and  day,"  and  equally  apparent,  since  the 
hours  of  duty  were  always  less  than  13,  that  the  law  was 
fully  observed  and  the  defendant  in  error  free  from  liability, 
if  this  office  belongs  in  the  class  of  those  "oi)erated  only 
during  the  daytime."  The  trial  court  held  that  it  was  an 
office  of  the  latter  class,  and  accordingly  directed  a  verdict 
in  favor  of  defendant.  The  correctness  of  that  ruling  is 
challenged  by  the  writ  of  error  to  this  court. 

The  meaning  and  intent  of  the  Hours  of  Service  Act  in 
various   particulars  has   been   the   subject   of   considerable 


APPENDIX   H.  g27 

litigation,  and  some  aid  to  the  conclusion  which  should  be 
reached  in  this  case,  or  at  least  a  starting  point  for  discus- 
sion, is  found  in  the  decision  of  the  Supreme  Court  in 
United  States  v.  Atchison,  Topeka  &  Santa  Fe  Ry.  Co.  (220 
U.  S.  37).    In  that  case  it  is  said: 

We  think  that  the  Government  is  right  in  saying  that  the  proviso  is  meant  to 
deal  with  all  offices,  and  if  so,  we  should  go  further  than  otherwise  we  might 
in  holding  offices  not  operated  only  in  the  daytime  as  falling  under  the  other 
head. 

In  view  of  this  declaration,  that  the  statute  covers  all 
telegraph  offices  in  which  interstate  train  orders  are  handled, 
and  since  the  statute  itself  makes  only  two  classes  of  such 
offices,  it  follows  of  course  that  this  Bennettsville  office  is 
one  to  which  the  law  applies,  and  that  the  telegraphers  there 
employed  can  be  kept  on  duty  not  more  than  9  hours,  if  it 
be  adjudged  a  "night  and  daj^"  office,  but  may  be  held  up 
to  13  hours,  if  it  be  adjudged  a  "daytime"  office.  It  must 
perforce  be  put  in  one  class  or  the  other. 

This  is  not  a  criminal  statute  and  therefore  is  not  gov- 
erned by  the  rule  of  strict  construction.  (Johnson  v.  South- 
ern Pacific  Co.  196  U.  S.  17 ;  St.  Louis  Southwestern  Ry.  Co. 
V.  United  States,  183  Fed.  771.)  It  is  rather  a  remedial  stat- 
ute which  should  be  so  construed,  if  its  language  permits,  as 
to  best  accomi^lish  the  protective  purpose  for  which  it  was 
enacted.  (Stewart  v.  Bloom,  11  Wall.  493 ;  Bechtel  v.  United 
States,  101  U.  S.  597.)  Obviously,  that  purpose  was  to  pro- 
mote the  safety  of  employees  and  the  traveling  public  by 
prohibiting  hours  of  service  which  presumably  result  in 
impaired  efficiency  for  discharging  their  important  duties. 
The  end  to  be  attained  by  the  law  is  a  guide  to  its  inter- 
pretation. 

It  is  argued  by  counsel  for  defendant  in  error  that  the 
Congress  intended  to  distinguish  between  (1)  offices  in 
which  train  orders  originate  and  from  which  they  are  issued, 
and  which  in  the  nature  of  the  case  must  ordinarily  be  kept 
open  for  approximately  the  entire  24  hours,  and  (2)  local 
offices  which  merely  receive  and  deliver  the  orders  so  is- 
sued, and  which  may  be  and  frequently  are  closed  during 


928  HOURS    OF    SERVICE    ACT. 

a  substantial  part  of  each  24-hour  period ;  and  that  there- 
fore the  classification  of  a  given  office  depends  as  a  prac- 
tical matter  upon  whether  it  is  an  office  like  that  of  a  train 
dispatcher,  who  actually  directs  and  controls  the  move- 
ment of  trains,  or  only  a  way  station  office  where  the  oper- 
ator aids  the  dispatcher  by  communicating  orders  and  send- 
ing in  reports.  Besides,  it  is  said  that  telegraphers  in  offices 
mainly  occupied  with  the  dispatching  of  trains  have  heavier 
responsibilities  and  are  under  greater  strain,  and  conse- 
quently should  be  restricted  to  shorter  hours,  than  em- 
ployees at  local  stations  who  perform  miscellaneous  duties 
and  perhaps  devote  only  a  small  portion  of  their  time  to 
the  receipt  and  delivery  of  train  orders  and  the  transmission 
of  train  reports. 

The  answer  to  this  argument  is  twofold.  In  the  first  place, 
we  find  nothing  in  the  language  of  the  act  to  support  such 
a  distinction.  The  terms  employed  are  plainly  intended  to 
include  every  sort  of  place  where  train  orders  are  handled, 
however  infrequently,  by  telegraph  or  telephone.  There  is 
nothing  to  suggest  that  the  permitted  hours  on  duty, 
whether  9  or  13,  are  determined  by  the  number  of  train 
orders  handled,  if  they  are  handled  at  all,  or  by  the  pro- 
portion of  time  which  the  employee  spends  in  that  particu- 
lar service.  Surely  the  descriptive  words,  "towers,  offices, 
places  and  stations,"  negative  any  intention  to  confine  the 
9-hour  limitation  to  those  offices,  however  designated,  in 
which  the  principal  work  of  the  operator  is  connected  with 
the  movement  of  trains.  In  short,  we  deem  it  beyond  dis- 
pute that  the  classification  of  an  office  is  fixed  by  the  length 
of  time  it  is  kept  open,  and  not  in  the  least  by  the  nature 
of  the  duties  performed,  if  only  those  duties  include  the 
handling  of  train  orders  as  occasion  may  require. 

In  the  second  place,  it  is  not  to  be  assumed  that  the  teleg- 
rapher in  a  train  dispatcher's  office,  or  other  similar  office, 
performs  more  wearisome  labor,  or  becomes  sooner  fatigued, 
than  the  operator  at  an  ordinary  local  station.  The  latter, 
it  is  true,  may  average  only  a  small  number  of  train  orders 
in  the  course  of  a  day,  but  nevertheless  he  may  have,  and 


APPENDIX   H.  929 

usually  does  have,  other  duties  which  are  varied  and  often 
onerous.  Even  if  he  is  not  called  upon  to  act  as  station 
agent,  and  does  little  but  use  the  telegraph  or  telephone,  the 
orders  and  messages  of  the  company  not  relating  to  trains, 
and  the  commercial  business  of  the  community,  may  involve 
exertion  and  responsibility  quite  as  fatiguing  as  the  work 
of  a  telegrapher  engaged  mainly  in  the  transmission  of  train 
orders.  In  other  words,  and  for  the  reasons  here  suggested, 
it  seems  to  us  that  operators  at  local  and  subordinate  sta- 
tions are  scarcely  less  liable  than  operators  at  main  offices 
to  suffer  loss  of  alertness  and  efficiency  from  excessive  hours 
of  duty.  In  our  judgment,  neither  the  terms  and  purpose  of 
the  statute,  nor  the  conditions  of  actual  service,  justify  us  in 
upholding  the  contention  here  considered. 

It  is  conceded  that  an  office  need  not  literally  be  kept 
open  every  minute  of  the  24  hours  in  order  to  be  within  the 
9-hour  restriction.  But  if  it  may  be  closed  for  one  or  more 
substantial  intervals  of  time  and  still  remain  in  the  9-hour 
class,  where  shall  the  line  of  division  be  drawn?  In  the 
Atchison  case,  above  cited,  the  office  was  shut  from  noon 
to  3  p.  m.,  and  from  midnight  to  3  a.  m.,  or  6  hours  in  all 
out  of  the  24,  and  the  Supreme  Court  strongly  intimated, 
though  the  point  was  not  directly  involved,  that  it  should 
be  classed  as  a  9-hour  office,  because  the  proviso  was  meant 
to  deal  with  all  offices  and  therefore  "we  should  go  further 
than  otherwise  w^e  might  in  holding  offices  not  operated  only 
during  the  daytime  as  falling  under  the  other  head."  But 
where  is  the  logical  place  to  stop?  The  words  "operated 
only  during  the  daytime"  are  quite  as  much  entitled  to  be 
made  effective  as  the  words  "continuously  operated  night 
and  day."  Manifestly,  if  we  look  only  at  the  surface  mean- 
ing of  the  words,  these  two  definitions  are  inconsistent,  or 
at  least  overlap  each  other,  since  there  must  be  many  offices 
which  could  not  be  fairly  described  as  "operated  only  dur- 
ing the  daytime"  and  yet  are  not,  in  any  absolute  sense, 
"continuously  operated  night  and  day."  For  example,  in 
a  case  argued  at  the  same  time  with  this,  the  office  was 
open  throughout  the  24  hours,  except  from  1:30  a.  m.  to 


930  HOURS    OF    SERVICE    ACT. 

6 :30  a.  m.  To  say  that  such  an  office  is  operated  only  in  the 
daytime  is  to  do  violence  to  the  commonest  understanding. 

This  is  plainly  a  case  where  the  natural  significance  of 
terms  must  yield  to  the  necessity  for  giving  to  the  entire 
proviso  such  reasonable  meaning  as  will  promote  its  bene- 
ficial purpose.  If  it  seems  a  strained  and  unwarranted  con- 
struction to  hold  that  an  office  which  is  generally  closed  at 
10:15  p.  m.,  and  never  later  than  11,  and  kept  closed  till 
6:30  a.  m.,  is  nevertheless  "continuously  operated  night  and 
day,"  is  it  not  equally  strained  and  unwarranted  to  hold 
that  an  office  which  is  kept  open  from  6  :30  a.  m.  to  10 :15 
p.  m.,  or  later,  is  nevertheless  "operated  only  during  the 
daytime."  Since  the  office  in  question  must  be  assigned  to 
one  class  or  the  other,  we  are  of  opinion  on  the  whole  that 
it  will  be  more  correctly  and  usefully  placed  in  the  night 
and  day  class  than  in  the  daytime  class.  If  this  conclusion 
gives  greater  effect  to  the  words  "operated  only  during  the 
daytime"  than  to  the  words  "continuously  operated  night 
and  day,"  we  think  the  objects  of  the  law  require  that 
preference  be  accorded  to  a  construction  which  recognizes 
the  legislative  intent  to  permit  13  hours  of  service  in  offices 
kept  open  only  such  number  of  hours  in  the  aggregate  as  do 
not  materially  or  substantially  exceed  the  length  of  an  ordi- 
nary day,  and  to  prohibit  more  than  9  hours'  service  in 
offices  kept  oj^en  such  number  of  hours  in  the  aggregate  as 
necessarily  include  a  material  or  substantial  portion  of  the 
night. 

It  follows  that  the  judgment  should  be  reversed  and  the 
case  remanded  for  a  new  trial. 

"Woods,  Circuit  Judge,  concurring: 

The  decision  of  this  case  depends  on  the  meaning  of  the 
word  "continuously"  in  the  following  statute: 

Prnmdrd,  That  no  operator,  train  dispatcher,  or  other  em]iloyee  who  by  the 
use  of  the  ielef,'raph  or  telephone  dispatches,  reports,  transmits,  receives,  or 
delivers  orders  pertaining'  to  or  affecting  train  movements  shall  l)e  required 
or  permitt<'d  to  be  or  remain  on  duty  for  a  lonjjcr  period  than  9  liours  in  any 
21-hour  period  in  all  towers,  offices,  places,  and  stations  continuously  operated 
night  and  day,  nor  for  a  longer  period  than   l;}  hours  in  all  towers,  offices. 


APPENDIX   H,  f)3]^ 

places,  and  stations  operated  only  during  the  daytime,  except  in  case  of  emer- 
gency, when  the  employees  named  in  this  proviso  may  he  permitted  to  be  and 
remain  on  duty  for  4  additional  hours  in  a  24!-hour  period  of  not  exceeding  3 
days  in  any  week. 

The  defendant  contends  that  "continuously"  means  with- 
out cessation,  and  that  the  offices,  etc.,  "continuously  oper- 
ated night  and  day"  can  only  include  places  operated  with- 
out cessation  throughout  the  night  and  day.  The  context 
and  the  purpose  of  the  statute  shows  that  this  is  not  the 
sense  in  which  the  words  were  used.  The  statute  was  in- 
tended to  cover  all  telegraph  offices.  (United  States  v. 
Atchison,  etc.,  R.  Co.,  220  U.  S.  37.)  If  the  defendant's 
construction  were  adopted  it  would  cover  only  day  offices 
and  offices  operated  throughout  the  day  and  night,  leaving 
out  the  offices  operated  during  the  day  and  into  the  night. 
There  is  some  reason  for  attributing  the  meaning  of  habit- 
ually or  regularly  to  the  word  continuously;  but  the  plain 
construction  and  that  which  will  give  the  statute  its  full 
signification  is  to  take  the  whole  phrase  "offices,  places,  and 
stations  continuously  operated  night  and  day"  to  mean 
offices  whose  operation  is  continued  from  the  day  into  the 
night.  The  statute  assumes  that  all  offices  will  be  operated 
during  the  daytime,  and  for  those  operated  during  the  day- 
time only  it  makes  the  13-hour  requirement ;  for  those  which 
are  operated  during  the  daytime  with  a  continuance  of  opera- 
tion into  the  night  it  makes  the  9-hour  requirement.  The 
office  at  Bennettville  was  in  operation  during  the  daytime 
with  continuance  into  the  night,  and  therefore  falls  under 
the  9-hour  class. 


932  HOURS    OF    SERVICE    ACT. 


(United  States  Circuit  Court  of  Appeals  for  the  Ninth  Circuit.) 


No.  2343. 


NORTHERN   PACIFIC   RAILWAY   COMPANY,   A   COR- 
PORATION, PLAINTIFF  IN  ERROR, 


UNITED  STATES  OF  AMERICA,  DEFENDANT  IN 

ERROR. 

(In  Error  to  the  District  Court  of  the  United  States  for  the  District  of  Montana.) 


Decided  May  It,  19H. 


Gunn,  Basch  d-  Hall  for  plaintiff  in  error. 

B.  K.  Wheeler,  United  States  attorney  (Bhilip  J.  Dolieriy 
and  ^Yalter  N.  Brown,  special  assistant  United  States  attornej's, 
on  the  brief),  for  defendant  in  error. 

Before  Gilbert  and  Ross,  Circuit  Judges,  and  Dietrich, 
District  Judge. 

OPINION  OF  THE  COURT. 
Ross,  Circuit  Judge: 

The  Government  brought  this  action  against  the  plaintiff 
in  error  railway  company  as  defendant  in  the  court  below 
for  alleged  violations  of  the  act  of  Congress  entitled  "An 
act  to  promote  the  safety  of  employees  and  travelers  upon 
railroads  by  limiting  the  hours  of  service  of  employees 
thereon,"  approved  March  4,  1907  (84  Stat.  L.,  p.  1415),  the 
complaint  containing  two  counts,  the  first  alleging  in  sub- 
stance that  the  defendant,  in  violation  of  the  act,  re(iuired 
and  permitted  one  of  its  firemen,  named  Drew — 

iiprm  its  line  of  riiilroiid  at  and  between  the  stations  of  Missouhi,  in  the  State  of 
MonUina,  and  Avon,  in  said  State — 


APPENDIX   H.  933 

to  be  and  remain  on  duty  as  such  for  a  longer  period  than 
16  consecutive  hours,  to  wit,  from  10  p.  m.  of  May  1,  1912,  to 
10:30  p.  m.  of  May  2,  1912,  the  said  fireman  at  the  time 
being — 

engaged  in  and  connected  with  the  movement  of  said  defendant's  train  No. 
extra,  drawn  by  its  own  locomotive  engine  No.  1654,  said  train  being  then  and 
there  engaged  in  the  movement  of  interstate  trafEc — 

and  the  second  count  alleging  in  substance  a  similar  viola- 
tion of  the  act  by  the  defendant  company  in  requiring  and 
permitting  one  of  its  firemen  named  Jenson — 

upon  its  line  of  railroad  at  and  between  the  stations  of  Missoula,  in  the  State  of 
Montana,  and  EUiston,  in  said  State — 

to  be  and  remain  on  duty  as  such  for  a  longer  period  than 
16  consecutive  hours,  to  wit,  from  3  :40  o'clock  p.  in.  of  May 
1,  1912,  to  4  o'clock  p.  m.  of  May  2,  1912,  being  at  the  time- 
engaged  in  and  connected  with  the  movement  of  said  defendant's  train  No. 
extra,  drawn  by  its  own  locomotive  engine  No.  1633,  said  train  being  then  and 
there  engaged  in  the  movement  of  interstate  trafEc. 

By  its  answer  the  defendant,  in  addition  to  the  denial  of 
the  alleged  violations  of  the  act  of  Congress,  set  up  in  re- 
spect to  the  first  count  that  Missoula  is  a  district  terminal 
on  the  company's  line  of  road,  and  Helena,  Mont.,  is  a 
divisional  terminal  thereof,  and  that  after  extra  train  1654 
had  left  Missoula  for  Helena  with  Drew  as  fireman,  it  en- 
countered storm  and  snowfall  of  such  unusual  and  unpre- 
cedented violence  that  when  it  arrived  at  the  station  of 
Avon,  the  telegraph  and  telephone  lines  of  the  company 
were  down  in  both  directions,  destroying  all  means  of  com- 
munication with  the  operators  and  dispatchers  of  the  com- 
pany along  the  portion  of  its  line  here  in  question  ;  that  in 
consequence  of  the  impossibility  of  proceeding  with  the 
train  in  such  circumstances  that  train  was  left  at  Avon  and 
the  crew  thereof,  including  the  fireman,  Drew%  having  been 
then  on  duty  15  hours  and  30  minutes,  was  released  from 
duty  in  connection  with  the  movement  of  the  train,  and 
Drew  placed  to  watch  and  guard  the  engine  on  a  sidetrack. 

Similar  circumstances  were  pleaded  in  the  answer  to  the 


934  HOURS    OF    SERVICE    ACT. 

second  count  of  the  complaint  in  respect  to  the  service  of 
the  fireman  Jenson,  on  extra  train  1633,  that  train  being  tied 
up  at  Elliston,  Mont. 

Both  trains  proceeded  east  from  Missoula,  the  stations  in 
their  order  being  Bearmouth,  Drummond,  Garrison,  Avon, 
Elliston,  and  Blossberg,  the  last-named  point  being  on  the 
Rocky  Mountain  Divide  which  extends  between  Elliston 
and  Helena. 

The  answer  further  alleged  that  the  delay  in  the  move- 
ment of  the  trains  in  question  and  the  necessity  of  watching 
and  guarding  their  engines  by  the  said  firemen  were  occa- 
sioned by  and  due  to  the  act  of  God  and  the  result  of  causes 
which  were  not  known  to  the  defendant  company,  its  officers 
or  agents,  at  the  time  the  trains  left  Missoula,  and  which 
could  not  have  been  foreseen. 

The  act  in  question  in  its  first  section  specifies  the  com- 
mon carriers  to  which  its  provisions  are  made  applicable, 
and  also  declares  that — 

the  term  "employees"  as  used  in  this  act  shall  be  held  to  mean  persons  actually 
engaged  in  or  connected  with  the  movement  of  any  train. 

Sections  2  and  3  are  as  follows : 

Sec.  2.  That  it  shall  be  unlawful  for  any  common  carrier,  its  officers  or 
agents,  subject  to  this  act  to  require  or  permit  any  employee  subject  to  this 
act  to  be  or  remain  on  duty  for  a  longer  period  than  16  consecutive  hours, 
and  whenever  any  such  employee  of  such  common  carrier  shall  have  been 
continuously  on  duty  for  10  hours  he  sh.all  be  relieved  and  not  required  or 
permitted  again  to  go  on  duty  until  he  has  had  at  least  10  consecutive  hours 
off  duty;  and  no  such  employee  who  has  been  on  duty  IG  hours  in  the  aggregate 
in  any  24-h()ur  period  shall  be  required  or  permitted  to  continue  or  again  go 
on  duty  witliout  having  had  at  least  8  consecutive  hours  off  duty.  Provided, 
That  no  operator,  train  dispatcher,  or  other  employee  who  by  the  use  of  the 
telegraph  or  telephone  dis]>atches,  reports,  transmits,  receives,  or  delivers 
orders  pertaining  to  or  affecting  train  movements  shall  be  required  or  per- 
mitted to  be  or  remain  on  duty  for  a  longer  ])eriod  than  9  hours  in  any  24-hour 
period  in  all  towers,  offices,  jjlaces,  and  stations  continuously  operated  night 
and  day,  nor  for  a  longer  period  than  13  hours  in  all  towers,  offices,  places,  and 
stations  operated  only  during  the  daytime,  except  in  cases  of  emergency,  when 
the  employees  named  in  this  proviso  may  be  permitted  to  be  and  remain  on 
duty  for  4  additional  hours  in  a  24-hour  period  on  not  exceeding  3  days  in 
any  week:  Provided  fiirlh/r.  The  Interstate  Commerce  Commission  may  after 
full  hearing  in  a  [jarticular  case  and  for  good  cause  shown  extend  the  period 
within  which  a  coniniori  carrier  shall  conqjly  with  the  j)rovisi()ns  of  this  proviso 
as  to  such  case. 

Sr.f.  ;j.  That  any  such  coiiiinon  carrier,  or  any  officer  or  ngent  thereof, 
retpiiririg  or  permitting  any  employee  to  go,  be,  or  remain  on  duty  in  violation 


APPENDIX   H.  935 

of  the  second  section  hereof,  shall  be  liable  to  a  penalty  of  not  to  exceed  $500 
for  each  and  every  violatit)n,  to  be  recovered  in  a  suit  or  suits  to  be  brought 
by  the  United  States  district  attorney  in  the  district  court  of  the  United  States 
having  jurisdiction  in  the  locality  where  such  violation  shall  have  been  com- 
mitted; and  it  shall  be  the  duty  of  such  district  attorney  to  bring  such  suits 
upon  satisfactory  information  being  lodged  with  him;  but  no  such  suit  shall 
be  brought  after  the  expiration  of  one  year  from  the  date  of  such  violation; 
and  it  shall  also  be  the  duty  of  the  Interstate  Commerce  Commission  to  lodge 
with  the  proper  district  attorneys  information  of  any  such  violations  as  may 
come  to  its  knowledge.  In  all  i)rosecutions  under  this  act  the  common  carrier 
shall  be  deemed  to  have  had  knowledge  of  all  acts  of  all  its  officers  and  agents: 
Provided,  That  the  provisions  of  this  act  shall  not  apply  in  any  case  of  casualty 
or  unavoidable  accident  or  the  act  of  God;  nor  where  the  delay  was  the  result 
of  a  cause  not  known  to  the  carrier  or  its  ofiBcer  or  agent  in  charge  of  such 
employee  at  the  time  said  employee  left  a  terminal,  and  which  could  not  have 
been  foreseen:  Provided  furikrr.  That  the  provisions  of  this  act  shall  not  apply 
to  the  crews  of  wrecking  or  relief  trains.    (3-1  Stat.  L.,  p.  1415.) 

The  contention  of  the  plaintiff  in  error  is  that,  as  in  each 
of  the  present  instances,  the  train  and  engine  were  side- 
tracked within  16  hours,  and  their  crews  laid  off  for  rest, 
and  that  thereafter  the  respective  firemen  were  placed  in 
charge  of  their  respective  engines  only  for  the  purpose  of 
keeping  up  the  fires  and  steam  and  otherwise  watching  the 
engines ;  they  were  not  during  such  time  actually  engaged 
in  or  actually  connected  with  the  movement  of  a  train,  and 
therefore  were  not  permitted  or  required  by  the  railroad 
company  to  l)e  or  remain  on  duty  for  a  longer  period  than 
16  hours  within  the  meaning  of  the  act  of  Congress;  and  the 
decision  of  the  Supreme  Court  in  the  case  of  Baltimore  & 
Ohio  Railroad  Co.  v.  Interstate  Commerce  Commission  (221 
U.  S.  612)  is  cited  by  counsel  as  sustaining  that  contention. 
We  can  not  take  that  view  of  that  case.  In  so  far  as  it 
bears  upon  the  question  we  have  here  we  think  the  proper 
conclusion  to  be  drawn  from  it  is  quite  the  reverse,  and 
sustains  our  conclusion  that  the  intent  of  the  act  vvas  and 
is  to  compel  rest  for  each  member  of  the  train's  crew  at  the 
termination  of  the  16-hour  period,  to  the  end  that  his  next 
and  succeeding  hours  of  service  may  be  efficient.  For  in  the 
case  cited  the  court,  at  page  619,  distinctly  says: 

The  length  of  hours  of  service  has  direct  relation  to  the  efficiency  of  the 
human  agencies  upon  which  protection  of  life  and  property  necessarily  depends. 
This  has  been  repeatedly  emphasized  in  official  reports  of  the  Interstate  Com- 
merce Commission,  and  is  a  matter  so  plain  as  to  require  no  elaboration.  In 
its  power  suitably  to  provide  for  the  safety  of  employees  and  travelers,  Congress 


936  HOURS    OF    SEIIVICE    ACT. 

was  not  limited  to  the  enactment  of  laws  relating  to  mechanical  appliances,  but 
it  was  also  competent  to  consider,  and  to  endeavor  to  reduce,  the  dangers 
incident  to  the  strain  of  excessive  hours  of  duty  on  the  part  of  engineers,  con- 
ductors, train  dispatchers,  telegraphers,  and  other  persons  embraced  within  the 
class  defined  by  the  act.  And  in  imposing  restrictions  having  reasonable  rela- 
tion to  this  end  there  is  no  interference  with  liberty  of  contract  as  guaranteed 
by  the  Constitution.  (Chicago,  Burlington  &  Quincy  Railroad  Co.  v.  McGuire, 
219  U.  S.  549.)  If,  then,  it  be  assumed,  as  it  must  be,  that  in  the  furtherance 
of  its  purpose  Congress  can  limit  the  hours  of  labor  of  employees  engaged  in 
interstate  transportation,  it  follows  that  this  power  cannot  be  defeated  either 
by  prolonging  the  period  of  service  through  other  requirements  of  the  carriers 
or  by  the  commingling  of  duties  relating  to  interstate  and  intrastate  operations. 

(See  also  United  States  v.  Great  Northern  Railway  Co., 
206  Fed.  838 ;  United  States  v.  Missouri  Pacific  Railway  Co., 
Id.,  647.) 

That  the  present  case  does  not  come  within  either  of  the 
provisions  of  the  act  declaring  that  it — 

shall  not  apply  in  any  case  of  casualty  or  unavoidable  accident  or  the  act  of 
God;  nor  where  the  delay  was  the  result  of  a  cause  not  known  to  the  carrier 
or  its  officer  or  agent  in  charge  of  such  employee  at  the  time  said  employee 
left  a  terminal,  and  which  could  not  have  been  foreseen — 

is  obvious,  if  for  no  other  reason,  because  the  uncontradicted 
evidence,  as  well  as  the  answer  of  the  defendant  company 
itself,  shows  that  each  of  the  trains  in  question  was  stopped 
by  direction  of  the  railroad  company,  sidetracked,  and  their 
respective  crews  laid  off  for  rest  within  16  hours  from  the 
time  they  left  ]\Iissoula  for  the  very  purpose  of  complying 
with  the  said  statute,  excepting  only  the  two  named  fire- 
men, who  were  continued  at  a  duty  which  the  company 
claims  was  not  within  the  inhibition  of  the  law ;  the  mistake 
made  was  its  own  mistake  in  continuing  one  of  each  of  the 
crews — the  fireman — at  the  duty  of  watching  the  engines. 
The  judgment  is  affirmed. 


APPENDIX   H.  93y 

(United  States  Circuit  Court  of  Appeals,  Seventh  Circuit.) 

No.  2148. 

FREDERICK  A.  DELANO,  WILLIAM  K.  BIXBY,  AND 

EDWARD  B.  PRYOR,  RECEIVERS  OF  WABASH 

RAILROAD   CO.,  PLAINTIFFS  IN  ERROR, 

V. 

UNITED  STATES  OF  AMERICA,  DEFENDANTS  IN 
ERROR. 

(Error  to  the  District  Court  of  the  United  States  for  the  Southern  District  of 
Illinois,  Southern  Division.) 


Decided  January  5,  1915. 


James  M.  Minnis,  N.  S.  Broivn,  R.  H.  McAnulty,  Walter 
McC.  Allen,  and  Otis  Scott  Humphrey  for  plaintiff's  in  error. 

Edward  C.  Knotts,  United  States  attorney;  Lawrence  Elmer 
Stone  and  Joseph.  II.  Story,  assistant  United  States  attorneys, 
for  defendants  in  error. 

Before  Baker,  Seaman  and  Kohlsaat,  Circuit  Judges. 

OPINION  OF  THE  COURT. 

Baker,  Circuit  Judge,  delivered  the  opinion  of  the  court: 

Plaintiffs  in  error,  defendants  below,  were  adjudged  to 
have  violated  the  Hours  of  Service  Act  (34  Stat.  L.  1415). 

Plaintiffs  declared  that  defendants  were  engaged  in  op- 
erating a  railroad  in  interstate  commerce  and  that  they  re- 
quired a  telegiapher,  who  was  employed  by  them  in  a  day 
and  night  station  to  receive  and  deliver  orders  affecting 
train  movements,  to  be  on  duty  11  hours  and  30  minutes 
during  each  24-hour  period. 

In  a  special  plea  defendants  admitted  all  the  averments 
of  the  declaration  except  the  one  respecting  the  service  of 


938  HOUR3    OF    SERVICE    ACT. 

the  operator.  Concerning  that  they  allege  that  he  performed 
the  duties  of  a  train  dispatcher  during  the  first  six  hours 
of  his  service  and  that  during  the  remaining  five  hours  and 
a  half  he  was  set  at  other  duties  that  did  not  pertain  to  or 
affect  the  movements  of  trains. 

A  demurrer  to  the  plea  was  sustained;  defendants  de- 
clined to  plead  further,  and  judgment  followed. 

Section  1  enacts  that  "the  term  'employees'  as  used  in 
this  act  shall  be  held  to  mean  persons  actually  engaged  in 
or  connected  with  the  movement  of  any  train,"  By  exclu- 
sion or  omission  ticket  sellers  and  inspectors  or  repairers 
of  telegraph  lines  and  apparatus  are  not  within  the  statute. 
If  our  train  dispatchers,  defendants  inquire,  may  lawfully 
be  employed,  after  we  relieve  them  from  train  dispatching, 
by  the  Majestic  Theater  to  sell  tickets  or  by  the  Western 
Union  to  inspect  and  repair  telegraph  lines  and  apparatus, 
why  may  not  we  also  lawfully  employ  them  in  like  capa- 
cities? 

An  answer  requires  an  examination  of  section  2,  which  is 
as  follows: 

Sec.  2.  That  it  shall  he  unlawful  for  any  common  carrier,  its  ofEcers  or  agents, 
subject  to  this  act  to  require  or  permit  any  employee  subject  to  this  act  to  be 
or  remain  on  duty  for  a  longer  period  than  sixteen  consecutive  hours,  and  when- 
ever any  such  employee  of  such  common  carrier  shall  have  been  continuously 
on  duty  for  sixteen  hours  he  shall  be  relieved  and  not  required  or  permitted 
again  to  go  on  duty  until  he  has  had  at  least  ten  consecutive  hours  off  duty;  and 
no  such  employee  who  has  been  on  duty  sixteen  hours  in  the  aggregate  in  any 
24-hour  period  shall  be  recjuired  or  permitted  to  continue  or  again  go  on  duty 
without  having  at  least  8  consecutive  hours  off  duty:  Provided,  That  no  operator, 
train  dispatcher,  or  other  employee  who  by  the  use  of  the  telegraph  or  telephone 
dispatches,  rejjorts,  transmits,  receives,  or  delivers  orders  pertaining  to  or 
affecting  train  movements  .shall  be  required  or  permitted  to  l)e  or  remain  on 
duty  for  a  longer  period  than  9  hours  in  any  24-hour  {)eriod  in  all  towers,  oflSces, 
places,  and  stations  continuously  operated  night  and  day. 

To  protect  the  lives  of  employees  and  of  the  traveling 
public  against  accidents  due  to  loss  of  efficiency  from  over- 
work was  the  purpose  of  limiting  the  hours  of  service. 
Actions  for  violations  are  civil;  and  the  statute,  in  view  of 
its  purpose,  should  be  liberally  construed  to  accomplish  the 
intended  cure,  U.  S.  r.  G.  N.  Ry.  Co.  (at  this  session),  — 
Fed.  — ,  and  eases  cited. 


APPENDIX  H. 


939 


Defendants  admit  that  the  employee  involved  in  this  case 
was  engaged  and  used  by  them  as  a  train  dispatcher.  There- 
fore lie  was  within  the  class  defined  in  section  1.  But  in  pro- 
tecting him  under  section  2  Congress  stated  no  class  of 
duties  in  which  he  might  be  overworked  by  defendants  and 
so  rendered  inefficient  as  a  train  dispatcher.  To  justify 
defendants'  claim,  the  statute  should  read  that — 

no  train  dispatcher  shall  be  required  or  permitted  to  be  on  duty  as  a  train  dis- 
patcher for  a  longer  period  than  9  hours  in  any  24-hour  period,  but  after  he  has 
been  relieved  as  a  train  dispatcher  the  carrier  may  require  him  to  serve  as  a 
ticket  seller,  provided  he  be  given  eight  consecutive  hours  off  duty. 

That,  however,  is  not  the  way  the  statute  was  written.  An 
adoption  of  defendants'  revision  Avould  be  not  only  contrary 
to  recognized  canons  of  statutory  construction,  but  also 
destructive  of  the  intended  cure  of  a  recognized  evil.  It  is 
a  matter  of  common  knowledge  (attested  by  the  carriers' 
petitions  to  the  Interstate  Commerce  Commission  imme- 
diately after  the  passage  of  the  act  for  time  in  which  to 
secure  additional  shifts  of  train  dispatchers)  that  prior  to 
the  act  carriers  were  having  24  hours'  work  divided  be- 
tween two  shifts,  and  that  at  most  of  the  stations  the  train 
dispatchers  acted  also  as  ticket  sellers  or  in  other  capacities. 
If  12  hours  of  mixed  work  as  train  dispatcher  and  ticket 
seller  is  forbidden,  it  would  be  simply  an  evasion  to  require 
6  consecutive  hours  of  duty  as  a  train  dispatcher  to  be  fol- 
lowed by  6  consecutive  hours  of  duty  as  a  ticket  seller.  The 
evil  to  be  cured  did  not  come  from  the  employees'  selling 
tickets  or  doing  work  for  other  people  when  off  duty,  but 
from  the  power  of  the  carriers,  customarily  exercised,  to  re- 
quire their  employees  who  were  concerned  with  train  move- 
ments to  do  extra  and  overtime  work. 

Our  conclusion  is  supported,  we  believe,  by  the  decisions 
in  B.  &  0.  R.  Co.  v.  I.  C.  C,  221  U.  S.  612 ;  M.,  K.  &  T.  R. 
Co.  V.  U.  S.,  231  U.  S.  112;  U.  S.  v.  G.  N.  R.  Co.,  206  Fed. 
838 ;  S.  P.,  L.  A.  &  S.  L.  R.  Co.  v.  U.  S.,  213  Fed.  326 ;  and 
it  accords  with  the  contemporaneous  construction  put  upon 
the  act  by  the  administrative  officers  (l-)  I.  C.  C.  13-1;  13 
I.   C.   C.   142 ;  Instructions  to  carriers  for  reporting  hours  of 


940  HOURS    OF    SERVICE    ACT. 

service.  Mar.  16,  1908),  whose  interpretation  is  entitled  to 
great  weight  and  should  not  be  overturned  without  clear 
and  cogent  reasons.  U.  S.  v.  Moore,  95  U.  S.  763 ;  Heath  v. 
Wallace,  138  U.  S.  582;  U.  S.  v.  Trans-Missouri  Freight 
Asso.,  166  U.  S.  290,  370. 
The  judgment  is  affirmed. 


No.  2635. 

UNITED  STATES  OF  AMERICA 

f. 

NORTHERN  PACIFIC  RAILWAY  COMPANY. 

(In  the  District  Court  of  the  United  States  for  the  Western  District  of  Wash- 
ington.) 


Decided  February  13,  19H. 


1.  An  employee  goes  on  duty,  within  the  meaning  of  the  law,  at  the  time  he 

reports  for  work,  as  required  by  the  rules  of  the  company,  and  begins 
the  work  of  looking  after  his  train  and  seeing  that  it  is  in  proper  condi- 
tion for  road  service.  He  remains  on  duty  while  he  is  in  charge  of  his 
train,  performing  service  in  and  about  the  same,  or  held  responsible  for  the 
performance  of  such  service  should  the  occasion  therefor  arise. 

2.  An  employee  is  not  off  duty  until  he  is  relieved  from  all  responsibility  as  to 

his  train  and  becomes  his  own  free  agent  to  go  and  do  as  he  pleases.  Brief 
interruptions,  such  as  time  necessary  for  meals  while  on  the  road,  meeting 
trains,  waiting  for  orders,  delays  on  account  of  congestion  of  traffic,  can- 
not be  considered  as  time  off  duty,  although  during  such  detention  no 
active  service  whatever  may  be  required  of  such  employee. 

3.  After  an  employee  in  train  service  starts  on  his  trip  he  cannot  be  said  to  be 

off  duty,  within  the  meaning  of  the  law,  until  he  roaches  the  end  of  his 
run,  unless  before  reaching  his  destination  he  is  released  from  all  service 
in  connection  with  his  train,  or  from  all  responsibility  therefor  should 
the  occasion  arise,  and  is  given  an  unqualified,  bona  fide  release,  and  for 
a  definite  and  substantial  period. 

4.  A  bona  fide  release  is  one  given  to  the  employee  for  tlic  purpose  of  giving 

him  an  opj)ortunity  for  rest,  and  not  given  merely  to  cover  a  delay  at  a 
certain  [)Iace  wliicli  the  company  knows  must  be  encountered,  hoping 
thereby  lo  evade  tin;  law. 


APPENDIX   H.  94X 

Winter  S.  Martin,  assistant  United  States  attorney,  and 
Monroe  C.  List,  special  assistant  to  United  States  attorney,  for 
plaintiff. 

J.  W.  Quick,  for  defendant. 

STATEMENT  OF  CASE. 

The  Government's  petition  in  this  case  was  in  12  counts; 
the  first  6  counts  related  to  the  crew  of  defendant's  freight 
train  extra  59,  running  between  Auburn  and  Arlington,  the 
continuous  service  required  of  the  crew  (as  charged)  being 
18  hours  and  45  minutes ;  the  last  6  counts  related  to  the 
crew  of  freight  train  No.  676,  running  between  Suraas  and 
Auburn,  the  petition  charging  17  hours  and  25  minutes  con- 
tinuous service  of  the  engineer  and  fireman  and  17  hours 
and  10  minutes  of  the  conductor  and  brakemen. 

The  defense  of  the  carrier  was  that  in  neither  case  were 
the  employees  in  question  on  duty  over  16  consecutive 
hours;  that  in  the  case  of  the  first  train  the  crew  were  defi- 
nitely released  from  all  service  in  connection  with  their 
train  at  Snohomish  for  2  hours  and  45  minutes ;  that  a 
similar  release  was  given  the  crew  of  the  second  train  at 
the  same  place  for  1  hour  and  30  minutes ;  and  that  these 
releases  operated  to  break  the  continuity  of  the  employees' 
services,  and  therefore  they  were  not  on  duty  more  than  16 
consecutive  hours,  as  charged. 

After  extra  59  had  completed  its  work  and  was  ready  to 
leave  Snohomish  it  was  seen  that  on  account  of  a  congestion 
of  traffic  and  the  delayed  arrival  of  opposing  trains  it  could 
not  leave  that  place  for  some  time ;  that  under  the  practice 
of  the  company  the  conductor  wired  the  dispatcher,  request- 
ing a  release  for  approximately  the  time  he  saw  they  would 
be  delayed  at  Snohomish,  and  that  a  message  was  sent  him 
to  put  his  train  in  charge  of  a  watchman  and  go  "on  re- 
lease" for  2  hours  and  45  minutes. 

A  similar  message  of  release  was  sent  to  the  conductor  of 
No.  676  at  Snohomish,  to  cover  a  delay  at  that  place  which 
the  carrier  knew  would  be  encountered  on  account  of  the 
coal-bunker  machinery  being  out   of  order  and  having  to 


942  HOURS    OF    SERVICE    ACT. 

coal  the  engine  by  hand.  This  machinery  had  been  out  of 
commission  for  a  week  prior  to  the  time  in  question,  and 
the  carrier  approximated  the  time  of  this  delay  to  be  about 
1  hour  and  30  minutes,  the  time  set  forth  in  the  message ; 
but  on  account  of  a  slight  delay  in  reaching  Snohomish  the 
crew  were  5  minutes  late  in  spotting  their  train  at 'the  coal 
bunker,  and  therefore  consumed  only  1  hour  and  25  minutes 
of  the  release. 

The  testimony  of  the  superintendent  and  chief  dispatcher 
was  to  the  effect  that  such  releases  were  given,  not  pri- 
marily for  the  purpose  of  affording  the  employees  rest,  but 
to  cover  delays  which  the  carrier  saw  would  be  encountered, 
with  a  view  of  extending  the  time  within  which  the  crews 
might  operate  their  trains,  although  during  such  delays  it 
was  known  that  no  active  service  whatever  would  be  re- 
quired of  the  employees. 

INSTRUCTIONS  TO  THE  JURY. 

CuSHMAN,  District  Judge: 

Gentlemen  of  the  jury,  the  issues  in  this  case  have  been 
thoroughly  explained  to  you  in  the  argument,  and  you  will 
take  the  pleadings  out  with  you,  to  which  you  are  expected 
to  resort  in  case  you  have  any  doubt  in  your  mind. 

Briefly,  there  are  12  causes  of  action  set  up  in  the  Govern- 
ment's  complaint.  Six  causes  of  action  concern  six  men  on 
one  train,  workmen  of  the  company — the  engineer,  fireman, 
conductor,  and  brakemen — and  six  men  on  another  train. 

The  Government  alleges  that  the  men  on  one  train  were 
on  duty  18  hours  and  45  minutes,  consecutive  hours  of  duty; 
that  on  the  other  train  they  were  on  duty  17  hours  and  25 
minutes,  or  17  hours  and  10  minutes,  some  of  them,  consecu- 
tive hours  of  duty. 

The  railroad  company,  the  defendant,  denies  that  those 
men  were  on  duty  that  length  of  time ;  in  effect,  denies  that 
any  of  them  were  on  duty  over  16  hours.  That  is  the  issue 
for  you  to  try,  whether  any  of  those  men  were  on  duty  over 


APPENDIX  H.  943 

16  hours.  You  understand  you  will  determine  each  one  of 
these  causes  of  action  by  itself. 

The  law  under  which  this  suit  is  brought  provides  that 
no  railroad  company  engaged  in  interstate  commerce  shall 
require  any  of  its  servants  that  are  engaged  in  like  com- 
merce to  be  or  permit  them  to  be  or  remain  on  duty  over 
16  hours  consecutively,  and  that  when  such  employees  have 
been  on  duty  16  consecutive  hours  that  they  shall  not  be 
again  permitted  or  required  to  go  on  duty  until  they  have 
had  10  hours  off  duty,  and  that  where  a  man  has  been  16 
hours  on  duty  in  the  aggregate  that  he  shall  not  be  required 
or  permitted  to  go  on  duty  again  until  he  has  had  8  hours 
off  duty. 

Now,  in  effect  the  Government  here  contends  that  in  re- 
gard to  this  18  hours  and  45  minutes  in  the  one  instance 
where  this  train  was  out,  and  the  other  where  it  w^as  out  17 
hours  and  25  minutes,  the  Government  contends  that  the 
men  on  that  train  were  throughout  that  time  on  duty ;  that 
those  hours  of  duty  were  consecutive.  The  railroad  com- 
pany, in  effect,  admits  while  the  train  was  out  this  length 
of  time  that  the  crews  were  not  on  duty  the  entire  length 
of  time  and  that  their  hours  on  duty  were  in  the  aggregate 
— that  the  duty  w^as  broken  by  a  space  in  which  they  had  an 
opportunity  to  rest. 

You  will  understand  w^hat  the  words  "consecutive"  and 
"in  the  aggregate"  mean.  This  law  prohibits  men  working 
consecutively  for  one  of  these  roads  over  16  hours ;  that 
means  one  hour  after  another  without  break,  without  sub- 
stantial break.  Where  it  says  16  hours  in  the  aggregate 
it  contemplates  where  there  has  been  a  substantial  break 
in  the  service,  in  the  duty  that  they  have  been  discharging. 
You  can  understand  that  in  determining  what  a  sub- 
stantial break  in  the  service  is,  or  the  performance  or  the 
discharge  of  the  duty  is,  you  should  take  into  consideration, 
what  the  purpose  of  the  law  was.  The  purpose  of  this  law 
was  that  it  was  considered  when  men  that  had  been  on  duty 
16  hours  consecutively  or  16  hours  in  the  aggregate,  in  or- 
der to  render  them  fit  to  discharge  the  duty  of  railroading. 


944  HOURS    OF    SERVICE   ACT. 

it  was  necessary  that  they  should  have  in  one  instance  10 
hours  off  duty  for  rest  and  recuperation,  and  in  the  other 
instance  8  hours  off  duty.  Therefore,  to  determine  what 
may  be  a  substantial  break  in  the  hours  of  service  it  is  your 
duty  to  consider  whether  the  break  was  sufficient  in  length 
of  time  and  under  circumstances  which  would  allow  the 
men  to  gain  some  rest  or  recuperation.  You  understand 
what  that  means.  You  were  here  in  court  when  we  took 
recesses  during  the  trial  of  cases  for  certain  purposes,  and 
in  schools  children  take  recesses,  are  permitted  to  take  re- 
cesses for  certain  purposes,  and  in  these  matters,  the  opera- 
tion of  these  trains,  having  in  mind  what  the  purpose  of 
the  law  was,  tliat  the  trainmen  in  order  to  be  sufficiently 
alert  and  wideawake  and  active  in  mind  and  in  body,  so  as 
to,  be  intrusted  with  the  handling  of  these  trains,  that  they 
should  not  be  required  to  be  on  duty  more  than  16  hours 
consecutively,  or  16  hours  in  the  aggregate  in  the  other 
case.  You  will  take  that  purpose  and  keep  it  in  your  mind 
in  determining  whether  this  break  that  is  claimed  by  the 
defendant  to  have  taken  place  in  the  service  of  these  men 
was  of  such  a  length  of  time  and  of  such  a  character  and 
under  such  circumstances  that  they  could  get  some  sub- 
stantial rest.  You  will  understand  that  it  is  not  every  brief 
interruption  of  the  work  in  getting  a  train  through  from  one 
terminal  to  another  which  you  would  be  authorized  to  de- 
duct from  their  duty.  That  is,  where  the  trainmen  stop  for 
a  brief  lunch  or  the  passing  of  trains  or  the  doing  of  work 
as  they  ordinarily  do  it,  you  would  not  be  authorized  to 
take  that  time  out,  because  manifestly  it  is  not  of  sufficient 
duration  to  enable  them  to  get  a  rest;  and  in  the  second 
place  they  are  on  duty,  charged  with  the  responsibility  of 
caring  for  the  train — it  is  in  effect  work.  Something  has 
l)een  said  in  the  argument  concerning  tlie  purposes  with 
which  these  releases,  which  are  claimed  to  have  been  givenv 
were  given;  that  is,  from  the  company's  standpoint  they 
were  given  so  that  they  could  get  the  train  in  without 
breaking  the  law.  You  will  understand  that  if  those  re- 
leases  were   a   mere   pretense   and   subterfuge   and   simply 


APPENDIX   H.  945 

merely  a  matter  of  color,  and  did  not  amount  to  anything, 
that  the  men  were  still  on  duty  and  still  responsible  for 
their  train,  charged  with  that  responsibility  and  under- 
stood it,  and  the  company  so  intended,  then  the  release 
would  not  amount  to  anything  and  would  be  no  defense. 
But  if  the  men  were,  by  these  releases  or  otherwise,  relieved 
from  all  responsibility  for  the  train  and  were,  as  the  law 
says,  "off  duty" — if  they  w^ere  relieved  from  all  respon- 
sibility for  the  train  and  had  the  opportunity  to  rest  under 
circumstances  where  they  could  rest,  and  for  a  length  of 
of  time  which  would  be  substantial,  considering  it  as  a 
matter  of  rest  and  recuperation,  then  the  defendant  would 
not  be  liable  in  this  ease  even  though  it  was  to  some  extent 
influenced  by  an  effort  to  prevent  violation  of  this  law. 
That  is,  if  these  releases  were  granted  for  two  purposes — 
for  the  purpose  of  protecting  the  company  against  the  vio- 
lation of  the  law,  and  for  the  honest  purpose  of  giving  these 
men  a  chance  and  an  opportunity  to  rest  where  they  could 
take  advantage  of  it — then  the  defendant  would  not  be 
liable,  even  though  it  was  actuated  by  a  desire  to  protect 
itself  against  the  Government. 

You  will  understand  that  the  time  they  were  off  duty,  as 
I  have  defined  it  to  you,  should  be  deducted  from  the  total 
time  they  were  out  in  determining  whether  the}^  were  either 
required  or  permitted  by  the  defendant  to  be  on  duty  over 
16  hours. 

The  court  will  read  to  you  certain  other  instructions,  but 
you  will  understand  that  if  they  repeat,  either  in  words  or 
the  ideas  that  I  have  already  conveyed  to  you  in  the  oral 
instructions,  that  you  are  not  to  conclude  that  the  court  is 
making  an  effort  to  direct  your  attention  to  one  part  of  the 
case  more  than  another  or  to  the  exclusion  of  some  other 
part.  I  am  simply  doing  it  so  as  to  cover  the  case  as  fully 
as  the  court  can. 

This  action  is  brought  by  the  United  States  against  the 
defendant  to  recover  certain  penalties  for  alleged  violations 
of  the  Federal  Hours  of  Service  Act.  This  act  was  approved 
March  4,  1907,  and  went  into  effect  one  year  later,  and,  as 


946  HOURS    OF    SERVICE    ACT. 

its  title  indicates,  was  passed  "to  promote  the  safety  of 
employees  and  travelers  upon  railroads  by  limiting  the  hours 
of  service  of  employees  thereon."  That  portion  of  section 
2  of  the  act  which  the  Government  charges  the  defendant 
with  having  violated  reads  as  follows : 

That  it  shall  be  unlawful  for  any  common  carrier,  its  oflBcers  or  agents, 
subject  to  this  act  to  require  or  permit  any  employee  subject  to  this  act  to  be 
or  remain  on  duty  for  a  longer  period  than  16  consecutive  hours. 

The  Government  contends  that  the  employees  named  in 
the  several  causes  of  action  of  its  complaint  were  required 
and  permitted  to  be  and  remain  on  duty  for  a  longer  period 
than  16  consecutive  hours.  The  defendant  does  not  deny 
that  the  employees  named  went  on  duty  at  the  times  and 
places  substantially  as  alleged  and  proved  by  the  Govern- 
ment ;  nor  does  it  deny  that  they  were  engaged  in  and  con- 
nected with  the  movements  of  trains  extra  59,  running  be- 
tween Auburn  and  Arlington,  and  No.  676,  running  between 
Sumas  and  Auburn,  and  that  these  employees  were  not 
finally  relieved  from  service  in  connection  with  these  trains 
until  the  time  alleged  by  the  Government.  But  the  de- 
fendant contends  that  these  employees  were  not  in  continu- 
ous service  over  16  hours;  that  in  the  case  of  extra  59,  two 
hours  and  forty-five  minutes  should  be  deducted  from  the 
time  charged  by  the  Government,  for  the  reason,  the  de- 
fendant says,  that  the  employees  on  this  train  were  released 
from  service  and,  therefore,  off  duty,  within  the  meaning  of 
the  law,  for  that  length  of  time  at  Snohomish ;  and  that  in 
the  case  of  train  No.  676,  1  hour  and  25  minutes  should  be 
deducted  from  the  time  charged,  for  a  similar  reason ;  that 
is,  that  the  crew  of  this  train  were  also  released  from  ser- 
vice and  off  duty,  within  the  meaning  of  the  law,  for  that 
length  of  time  at  Snohomish. 

Therefore,  the  question  for  the  jury  to  decide  is  whether 
the  employees  named-  were  required  to  be  and  remain  on 
duty  for  a  longer  period  than  16  consecutive  hours. 

Til  is  is  not  a  criminal  action  and  the  Government  is  not 
re(| aired  to  prove  to  you  beyond  a  reasonable  doubt  that 
the  law  was  violated.     It  is  only  required  to  prove  to  you 


APPENDIX   H.  947 

by  a  fair  preponderance  of  the  evidence  that  the  employees 
in  question  were  required  and  permitted  to  be  and  remain 
on  duty  for  9,  longer  period  than  16  consecutive  hours. 

But  you  understand  that  before  you  can  return  a  verdict 
against  the  defendant  and  in  favor  of  the  Government  on 
any  cause  of  action  the  Government  must  have  established 
all  the  material  allegations  of  that  cause  of  action,  as  I  have 
explained  to  you,  by  the  fair  preponderance  of  the  evi- 
dence, and  if  there  has  not  been  a  fair  preponderance  of  the 
evidence  in  the  Government's  favor  sustaining  those  ma- 
terial allegations,  as  I  have  defined  them  to  you,  it  would 
be  your  duty  to  return  a  verdict  in  favor  of  the  defendant ; 
that  is,  if  the  evidence  preponderates  in  favor  of  the  defend- 
ant or  it  is  evenly  balanced  so  that  you  are  unable  to  say 
on  which  side  the  preponderance  is,  then  your  verdict  should 
be  for  the  defendant. 

An  employee  goes  on  duty,  within  the  meaning  of  the 
law,  at  the  time  he  reports  for  work,  as  required  by  the 
rules  of  the  company,  and  begins  the  work  of  looking  after 
his  train  and  seeing  that  it  is  in  proper  condition  for  road 
service.  He  remains  on  duty  while  he  is  in  charge  of  his 
train,  performing  service  in  and  about  the  same,  or  held 
responsible  for  the  performance  of  such  service  should  the 
occasion  therefor  arise. 

An  employee  is  not  off  duty  until  he  is  relieved  from  all 
responsibility  as  to  his  train  and  becomes  his  own  free  agent 
to  go  and  do  as  he  pleases.  Brief  interruptions,  such  as 
time  necessary  for  meals  while  on  the  road,  meeting  trains, 
waiting  for  orders,  delays  on  account  of  congestion  of  traf- 
fic, can  not  be  considered  as  time  off  duty,  although  during 
such  detention  no  active  service  whatever  may  be  required 
of  such  employee. 

Of  course,  what  is  a  brief  interruption  is  a  relative  term ; 
in  determining  what  a  brief  interruption  is  as  covered  by 
this  instruction  you  will  take  into  consideration  what  I 
have  already  told  you.  You  can  understand  if  a  man  was 
engaged  in  a  ''tug  of  war"  that  if  he  had  2  hours  and  45 
minutes  off  it  would  be  a  substantial  rest  from  that  occu- 


948  HOURS   OF    SERVICE   ACT. 

pation,  and  so  here  you  must  use  your  practical  judgment 
and  experience  as  men  in  determining  whether  this  inter- 
ruption in  this  service  such  as  is  claimed  by  the  defendant 
was  of  substantial  benefit  for  the  purpose  that  Congress 
intended  this  law,  to  enable  the  men  to  revive  and  recu- 
perate and  rest,  so  tliat  they  migbt  renew  tbeir  service  and 
duty.  After  an  employee  in  train  service  starts  on  his  trip 
he  can  not  be  said  to  be  off  duty,  within  the  meaning  of  the 
law,  until  he  reaches  the  end  of  his  run,  unless  before  reach- 
ing his  destination  he  is  released  from  all  service  in  con- 
nection with  his  train  or  from  all  responsibility  therefor 
should  the  occasion  arise,  and  is  given  an  uncjualified,  bona 
fide  release,  and  for  a  definite  and  substantial  period. 

A  bona  fide  release  is  one  given  to  the  employee  for  the 
purpose  of  giving  him  an  opportunity  for  rest,  and  not 
given  merely  to  cover  a  delay  at  a  certain  place  which  the 
company  knows  must  be  encountered,  hoping  thereby  to 
evade  the  law. 

I  have  already  told  you  that  it  did  not  abrogate  the  re- 
lease or  destroy  its  effect  if  it  was  given  for  the  two  pur- 
poses of  enabling  the  railroad  company  to  avoid  the  break- 
ing of  this  law  and  at  the  same  time  for  the  honest  purpose 
of  allowing  the  men  to  rest  under  circumstances  where  a 
reasonal)le  man  would  expect  they  could  rest. 

In  considering  the  question  of  Avhether  or  not  a  release 
is  a  bona  fide  one,  the  jury  may  take  into  consideration  all 
the  surrounding  circumstances;  whether  the  employees  in 
question  would  have  been  subjected  to  more  active  duties 
during  the  time  delayed  had  the  release  not  been  given;  and 
whether  or  not  the  release  afforded  the  employees  oppor- 
tunities for  substantial  rest  and  which  would  not  have 
been  afforded  them  in  the  absence  of  such  release. 

If  it  appeared  to  the  company  that  a  certain  train  would 
probably  be  delayed  at  a  station  for  a  certain  time,  by  rea- 
son of  a  congested  condition  of  traffic  or  on  account  of 
having  to  coal  the  engine  by  hand,  and  the  carrier  notified 
the  employees  on  that  tiiiin  that  they  were  released  for  a 
certain  time,  which  was  ai)i»i-oximately  the  time  the  com- 


APPENDIX  H.  949 

pany  saw  they  would  be  delayed  at  that  place,  and  the  only  rea- 
son for  such  release  was  for  the  purpose  of  extending  the 
time  within  which  the  employees  might  operate  their  train, 
and  neither  the  purpose  nor  effect  of  the  release  was  to 
afford  the  trainmen  any  rest,  the  jury  would  be  warranted 
in  finding  that  such  release  was  not  bona  fide  but  merely  a 
subterfuge. 

In  considering  the  question  as  to  whether  a  certain  re- 
lease was  for  a  substantial  period,  the  jury  may  consider  all 
the  surrounding  circumstances,  the  real  object  of  the  re- 
lease, the  rights  of  the  company  and  the  employees,  the 
time  and  place  of  the  release,  the  effect  of  the  cancellation 
of  the  release  had  the  same  been  made,  and  such  other  tes- 
timony as  to  the  jury  might  seem  proper  in  its  determina- 
tion of  this  question. 

Gentlemen  of  the  jury,  you  are  in  this  case,  as  in  every 
other  case  where  questions  of  fact  are  submitted  to  the  jury 
for  their  determination,  the  sole  and  exclusive  judges  of 
every  question  of  fact  in  the  case  and  the  weight  of  the 
evidence  and  the  credibility  of  the  witnesses.  If  either  of 
the  attorneys  in  the  case  or  the  court  has  commented  upon 
or  taken  for  granted  that  the  evidence  shows  certain  facts 
that  disagrees  with  your  recollection  of  the  evidence,  you 
will  remember  that  it  is  your  own  judgment  that  should 
prevail  as  to  the  evidence,  and  it  is  your  duty  to  take  the 
instructions  concerning  the  law  from  the  court.  In  weigh- 
ing the  evidence  and  passing  on  the  credibility  of  the  wit- 
nesses, you  should  take  into  consideration  their  conduct  and 
demeanor  and  appearance,  whether  they  impress  you  as 
being  perfectly  candid  and  trying  to  tell  you  the  exact  facts, 
neither  adding  to  or  taking  from  them,  or  whether  they 
appear  to  you  to  be  reluctant,  evasive,  or  hesitating  and 
holding  back  something,  it  being  necessary  to  repeat  the 
questions  to  them  in  order  to  get  them  to  tell  what  they 
claim  to  know ;  or  whether  they  impress  you  as  being  too 
willing,  too  free,  running  on  and  volunteering  information 
which  no  one  has  asked  them  about.  Also  take  into  con- 
sideration the  position  in  which  the  witnesses  were  as  en- 


950  HOURS    OF    SERVICE   ACT. 

abling  them  to  know  about  the  facts  about  which  they 
undertake  to  testif}^ ;  whether  their  testimony  appears  to 
be  reasonable  and  probable,  or  whether  it  is  contradictory 
or  corroborated  by  other  evidence  where  you  would  expect 
it  to  be  corroborated  if  it  were  true;  whether  it  is  contra- 
dicted by  other  evidence  in  the  case. 

So  you  will  take  into  consideration  the  interest  that  any 
Matness  may  be  shown  to  have  in  the  case,  either  by  his 
relation  to  it  or  the  manner  in  which  he  gives  his  testimony. 


No.  1483. 
UNITED  STATES  OF  AMERICA 

V. 

NORTHERN  PACIFIC  RAILWAY  COMPANY. 

(United   States   District   Court,   Eastern   District   of   Washington,    Northern 

Division.) 


Decided  April  21,  19U. 


The  period  of  service  of  a  given  train  crew  ended  17  hours  and  30  minutes 
after  its  inception,  but  in  the  interim  the  men  were  entirely  relieved  from 
duty  for  a  predetermined  period  of  1  hour  and  30  minutes,  a  watchman 
then  being  in  charge  of  the  train;  Held,  That  such  a  layoff  or  release  from 
duty,  even  though  for  a  definite  period,  does  not  break  the  continuity 
of  service  within  the  meaning  of  the  Hours  of  Service  Act. 

Francis  A.   Garreclit,   United   States   attorney,   and   Otis  B. 
Kent,  special  assistant  United  States  attorney,  for  plaintiff. 
Edward  J.  Cannon,  for  defendant. 

OPINION  OF  THE  COURT. 
RuDKix,  District  Judge. 

This  is  an  action  to  recover  penalties  for  violation  of  the 
act  of  Congress  of  March  4,  1907,  entitled  "An  act  to  pro- 
mote the  safety  of  employees  and  travelers  upon  railroads 


APPENDIX   H.  95]^ 

b}^  limiting  the  hours  of  service  of  employees  thereon"  (34 
Stat.  1415),  commonly  known  as  "The  Hours  of  Service 
Act."  The  complaint  contains  six  counts  or  causes  of  action 
in  all,  based  upon  excessive  hours  of  service  by  the  several 
members  of  the  same  train  crew.  The  case  has  been  sub- 
mitted to  the  court  upon  an  agreed  statement  of  facts  from 
which  the  following  appears: 

The  defendant  is  a  common  carrier  by  railroad  engaged 
in  interstate  commerce,  and  the  several  employees  named 
in  the  different  counts  or  causes  of  action  were  in  the  em- 
ploy of  the  defendant  engaged  in  or  in  connection  with  the 
movement  of  its  trains;  on  the  10th  day  of  January,  1912, 
the  engineer  and  fireman  of  engine  No.  1507,  hauling  an 
eastbound  extra  freight  train  from  Tacoma,  "Wash.,  to  Cle 
Elura,  Wash.,  went  on  duty  at  the  hour  of  5  -.30  a.  m.  and 
remained  on  duty  until  11  p.  m.  of  the  same  day;  the  con- 
ductor and  the  remaining  members  of  the  crew  went  on  duty 
at  the  hour  of  5  o'clock  a.  m.  and  remained  on  duty  until 
the  hour  of  10:30  o'clock  p.  m. ;  the  schedule  time  out  of 
Tacoma  was  6  o'clock  a.  m. ;  but  the  departure  of  the  train 
was  delayed  for  45  minutes  by  reason  of  a  derailment  in  the 
yards;  the  train  arrived  at  Auburn,  18  miles  east  of  Tacoma, 
at  8  :25  a.  m.,  and  was  there  held  for  a  period  of  1  hour  and 
30  minutes  to  permit  superior  trains  to  meet  and  pass ;  dur- 
ing this  period  of  1  hour  and  30  minutes  the  train  was 
placed  in  charge  of  an  engine  foreman  or  watchman  at 
Auburn,  and  the  train  crew  laid  off  or  released  from  duty. 
If  the  layoff  of  1  hour  and  30  minutes  at  Auburn  be  in- 
cluded in  the  hours  of  service  of  the  crew,  the  law  has  been 
transgressed ;  but  if  excluded,  the  time  of  actual  service  falls 
within  the  16-hour  period  limited  by  law.  The  sole  ques- 
tion presented  for  decision  is,  therefore,  does  a  definite  lay- 
off or  release  from  duty  for  a  period  of  1  hour  and  30 
minutes,  under  the  circumstances  stated,  break  the  con- 
tinuity of  the  service  within  the  meaning  of  the  law?  I  am 
of  the  opinion  that  it  does  not.  In  the  case  of  United  States 
V.  Chicago,  Milwaukee  &  P.  S.  Ry.  Co.,  197  Fed.  624,  I  held 
that  a  layoff  of  from  30  to  45  minutes  for  breakfast  and   of 


352  HOURS    OF    SERVICE   ACT. 

about  1  hour  each  for  the  midday  and  evening  meals  did  not 
break  the  continuity  of  the  service.  I  further  held  in  the 
same  case  that  an  indefinite  layoff  of  3  hours  while  the 
train  crew  was  awaiting  the  arrival  of  a  helper  engine  at  a 
small  way  station  did  not  break  the  continuity  of  the  serv- 
ice. This  decision  was  cited  with  apparent  approval  in  the 
case  of  M.,  K.  &  T.  Ry.  Co.  v.  U.  S.,  231  U.  S.  112.  That 
case,  it  seems  to  me,  is  controlling  here.  The  purpose  of  the 
statute  is  plain,  and  it  must  be  so  construed  as  to  promote 
its  policy.  The  hours  of  service  of  railway  trainmen  are 
long  at  best,  leaving  only  8  hours  for  rest  and  recreation, 
and  if  this  brief  period  can  be  broken  into  fragments  the 
purpose  and  policy  of  the  law  will  be  entirely  frustrated. 
If  a  train  crew  may  be  laid  off  for  an  hour  and  a  half  at 
one  point  to  suit  the  convenience  or  necessities  of  the  com- 
pany, it  may  be  laid  off  for  a  like  period  at  another,  and 
the  members  of  the  crew  thus  wholly  deprived  of  any  sub- 
stantial period  for  either  sleep  or  rest.  If  this  crew  had  not 
been  released  from  duty  at  Auburn,  the  members  would 
have  been  compelled  to  remain  idle  until  the  time  of  de- 
parture arrived,  and  the  release  for  the  brief  period  allowed 
by  the  company  permitted  them  to  do  little  else.  The  re- 
lease was  of  no  benefit  to  the  crew  and  could  subserve  no 
substantial  purpose  except  to  obviate  the  penalty  imposed 
by  law.  Perhaps  it  can  not  be  said  as  a  matter  of  law  in 
all  cases  whether  a  release  from  duty  for  a  fixed  period  of 
time  will  or  will  not  be  sufficient  to  break  the  continuity 
of  the  service.  No  doubt  in  extreme  cases  the  court  may 
declare  as  a  matter  of  law  that  a  given  period  is  so  short 
as  not  to  break  the  continuity  of  the  service,  or  that  another 
period  is  so  long  as  to  break  the  continuity  of  the  service; 
but  between  these  extremes  there  is  a  twilight  zone,  where 
the  question  ])ecomes  a  mixed  one  of  law  and  fact.  This 
case,  however,  has  been  submitted  to  the  court  for  decision, 
and  whatever  inferences  are  to  be  drawn  from  the  admitted 
facts  must  be  drawn  ])y  the  court,  and  under  the  admitted 
facts  I  am  of  the  opinion  that  the  plain  si)irit  and  policy  of 
tlie  law  has  been  violated.     I  therefore  adjudge  the  defend- 


APPENDIX   H.  953 

ant  guilty  on  each  count  or  cause  of  action,  and  impose  a 
penalty  of  $100  and  costs  for  each  violation. 
Let  judgment  be  entered  accordingly. 


No.  683. 
THE  UNITED  STATES  OF  AMERICA 

V. 

CHICAGO  &  NORTH  WESTERN  RAILWAY  CO. 

(In  the  District  Court  of  the  United  States  for  the  Western  District  of  Michigan, 
Northern  Division.) 


October  30,  19U. 


In  a  prosecution  for  the  statutory  penalty  under  the  Federal  Hours  of  Service 
Act  the  stipulated  facts  showed  that  certain  telegraph  operators  in  ofBccs 
operated  only  during  the  daytime  had  full  regular  periods  of  one  hour  each 
ofif  for  meals  as  a  uniform  and  regular  practice,  which  periods,  if  deducted, 
were  sufficient  to  reduce  their  period  of  service  to  less  than  13  hours;  that 
if  during  a  meal  hour  an  unexpected  train  should  arrive,  these  operators 
would  give  it  the  necessary  attention  and  complete  their  meal  hour  after 
so  doing,  as  a  common  practice;  that  they  were  paid  for  the  full  amount 
of  overtime  charged  and  also  for  their  regular  service.  Held,  That  such 
operators  were  "on  duty"  during  the  time  they  were  taking  their  meals. 
(U.  S.  V.  C,  M.  &  P.  S.  Ry.  Co.,  197  Fed.  624;  M.,  K.  &  T.  Ry.  Co.  v. 
U.  S.,  231  U.  S.  112;  U.  S.  v.  Northern  Pacific  Ry.  Co.,  213  Fed.  539.) 

The  fact  that  a  connecting  carrier  delivered  a  through  passenger  train  late  to 
the  defendant  railway  company  did  not  constitute  an  emergency  within 
the  meaning  of  the  Federal  Hours  of  Service  Act  which  would  justify  the 
defendant  railway  company  in  permitting  the  service  of  a  telegraph  opera- 
tor in  excess  of  13  hours  at  a  daytime  office  where  no  other  operator  was 
employed.  Such  delays  are  usual  incidents  in  the  ordinary  operation  of 
railroads  and  do  not  constitute  an  emergency  within  the  meaning  of  the 
law.  (U.  S.  V.  E.  C.  S.  Ry.  Co.,  202  Fed.  828;  U.  S.  v.  K.  C'  S.  Ry.  Co.,  189 
Fed.  471.) 

A  telegraph  operator  at  a  daytime  office  whose  regular  hours  were  from  7  a. 
m.  to  7  p.  m.  worked  overtime  from  7  p.  m.  to  12  midnight,  the  excess  serv- 
ice being  performed  by  reason  of  the  fact  that  the  departure  of  a  carnival 
company's  train  which  was  not  due  to  leave  the  station  in  question  until 
9  o'clock  that  night,  and  which,  on  .account  of  physical  conditions,  it  was 


954  HOURS    OF    SERVICE   ACT. 

necessary  to  load  on  the  main  line,  was  delayed  due  to  some  of  the  em- 
ployees of  the  carnival  company  being  intoxicated  and  running  a  wagon  off 
a  flat  car.  Held,  That  accidents  of  this  character  furnish  neither  justifica- 
tion nor  excuse  for  a  violation  of  a  remedial  statute  like  the  one  under 
consideration. 

Myron  H.   ]yal]i-er.  United   States   attorney,   and   Walter  N. 
Brown,  special  assistant  United  States  attorney,  for  plaintiff. 
F.  A.  Bell  for  defendant. 

OPINION  OF  THE  COURT. 

Sessions,  Disirict  Judge: 

This  is  a  suit  to  recover  penalties  for  violations  of  the 
Hours  of  Service  Act  of  March  4,  1907,  in  keeping  telegraph 
operators  on  duty  for  more  than  13  hours  during  periods 
of  24  hours.  The  complaint  or  declaration  contains  24 
counts,  in  each  of  which  a  separate  and  distinct  violation 
is  alleged.  The  defendant  confesses  liability  under  14  of 
the  counts,  but  denies  liability  under  the  other  10  counts. 
The  decision  of  the  ease  in  each  of  8  counts  hinges  upon  the 
question  of  whether  or  not  the  time  for  meals  of  the  oper- 
ator should  be  deducted  from  the  hours  of  his  service.  The 
stipulated  facts  in  this  regard  are  as  follows : 

As  to  counts  2,  3,  7,  9,  10,  11,  12,  and  13,  the  employees  in  each  instance 
were  off  duty  for  dinner  or  supper,  or  both,  for  full  regular  periods  of  one  hour 
for  each  meal  sufficient  to  reduce  the  period  of  service  to  less  than  13  hours. 
And  <as  to  these  counts  it  is  agreed  that  the  testimony  shows  that  the  employee 
always  has  a  full  hour  ^)^  duty  for  dinner  and  also  for  supper  as  a  uniform  and 
regular  j)ractice;  that  they  have  no  definite  recollection  as  to  the  particular 
days  in  question;  that  if  during  a  meal  hour  an  unexpected  train  should  arrive 
at  their  station  they  would  give  it  the  necessary  attention  and  complete  their 
meal  hour  after  doing  so  as  a  common  practice;  that  they  were  paid  for  the 
full  amount  of  overtime  charged,  and  also  for  their  regular  service. 

From  these  facts  it  is  apparent  that  the  operator  was 
always  subject  to  call  whenever  his  services  were  required, 
both  during  meal  hours  and  at  other  times.  It  is  well  set- 
tled that,  within  the  meaning  of  the  Hours  of  Service  Act, 
brief  periods  allowed  for  meals  and  other  purposes  do  not 
interrupt  the  continuity  of  service.  Under  the  circum- 
stances here  shown,  it  must  be  held  that  the  operator  was 
on  duty  during  the  time  he  was  taking  his  meals.     (United 


APPENDIX   H.  955 

States  V.  C,  I^.I.  &  P.  S.  Ry.  Co.,  197  Fed.  624-627 ;  M.,  K.  & 
T.  Ry.  Co.  V.  United  States,  231  U.  S.  112-119 ;  United  States 
V.  N.  P.  Ry.  Co.,  213  Fed.  539.) 

The  defense  to  the  causes  of  action  alleged  in  the  remain- 
ing two  connts — 21  and  22 — is  that  in  each  case  an  emer- 
gency existed  which  excused  and  justilied  the  excessive 
time  of  service.  As  to  count  21,  the  alleged  emergency  is 
thus  described  in  the  stipulation  of  facts : 

A  regular  passenger  train  through  from  Calumet,  Mich.,  to  Chicago,  III., 
over  tlie  Duluth,  South  Shore  &  Atlantic  Railway  and  Chicago  &  North  West- 
ern, clue  to  be  delivered  to  the  Chicago  &  North  Western  Railway  at  Ish- 
peming,  Mich.,  at  0:1.5,  and  due  out  of  Ishpeming  at  0:.'30  p.  ni.,  was  not  de- 
livered to  the  Chicago  &  North  Western  so  that  it  could  leave  there  until 
10  o'clock  p.  m.;  tiiat  on  its  departure  the  employee  went  at  once  off  duty; 
that  the  operator  knew,  about  5  o'clock  p.  m.,  that  the  train  was  late;  that 
Ishpeming  is  a  daytime  station,  and  there  are  no  other  operators  there  in  the 
employ  of  the  defendant.  > 

Delays  in  the  arrival  and  departure  of  trains  are  of  fre- 
quent occurrence  and  are  usual  incidents  in  the  ordinary 
operation  of  railroads.  The  fact  that  the  defendant  re- 
ceived the  through  train  in  question  from  another  railroad 
is  of  no  conse(|uence.  Delays  in  the  departure  of  trains 
caused  by  trains  upon  connecting  lines  being  late  are  com- 
mon. Such  delays  do  not  constitute  an  emergency  wathin 
the  meaning  of  the  law.  (United  States  v.  K.  C.  S.  Ry.  Co., 
202  Fed.  828-833,  834;  United  States  v.  K.  C.  S.  Ry.  Co.,  189 
Fed.  471-478.) 

The  facts,  as  stipulated,  with  reference  to  the  overtime 
service  charged  in  count  22  are  these : 

A  carnival  company  was  loading  its  stuff  in  Norway  for  removal  to  Green 
Bay,  Wis.  Some  of  its  employees  were  intoxicated  and  ran  a  wagon  off  a  flat 
car,  which  caused  a  long  delay  in  the  train's  departure.  On  account  of  physical 
conditions  this  train  was  of  necessity  loaded  on  one  of  the  main  lines,  and  it 
was  necessary  to  clear  said  line  as  soon  as  possible.  The  assistant  superin- 
tendent was  on  the  ground  and  directed  the  employee  to  stay,  as  he  did,  to 
assist  in  getting  orders  for  that  train.  The  carnival  company  had  been  in  Nor- 
way several  days  and  was  due  to  leave  there  at  9  o'clock  of  the  night  of  Sunday 
the  21st.  The  regular  assigned  hours  for  which  the  employee  was  regularly 
paid,  including  meal  hours,  were  from  7  a.  m.  to  7  p.  m.,  and  the  employee  was 
paid  overtime  from  7  to  12  p.  m. 

It  thus  appears  that  the  accident  which  caused  the  delay 
in  the  departure  of  the  circus  train  occurred  a  considerable 


956  HOURS    OF    SERVICE    ACT. 

time  before  the  expiration  of  the  period  during  which  the 
operator  might  lawfully  have  worked.  He  had  been  con- 
tinuously on  duty  since  7  o'clock  in  the  morning  and  the 
train  was  not  due  to  leave  until  9  o'clock  at  night.  There 
is  no  showing  that  another  operator  could  not  have  been 
procured.  Accidents  of  this  character  often  happen' and 
are  to  be  expected.  They  furnish  neither  justification  nor 
excuse  for  a  violation  of  a  remedial  statute  like  the  one 
under  consideration.  (United  States  v.  S.  P.  Ry.  Co.,  209 
Fed.  562.) 

Judgment  will  be  entered  in  favor  of  the  plaintiff  and 
against  the  defendant  for  the  sum  of  $100  upon  each  count 
of  the  declaration.  Plaintiff  will  recover  costs  of  suit  to 
be  taxed. 


UNITED  STATES  OF  AMERICA 


SOUTHERN  RAILWAY  CO. 

(In  the  District  Court  of  the  United  States  for  the  Western  District  of  South 

Carolina.) 


Greenville,  S.  C,  October  30,  1913. 


1.  The  occurrence  of  an  accident  or  delay  by  the  act  of  God,  or  of  a  casualty  or 

unavoidable  accident,  while  a  train  is  in  course  of  transit  from  one  ter- 
minal point  to  another,  does  not  suspend  the  entire  Hours  of  Service  Act 
as  to  that  train;  the  statute  does  not  mean  that  as  to  a  train  so  delayed 
the  operative  period  of  service  is  extended  from  16  to  21  or  26  hours, 
according  as  some  delay  from  the  exempting  causes  may  occur  whilst 
uie  train  is  in  transit. 

2.  The  hours  of  service  may  be  extended  in  such  cases  beyond  the  period  fixed 

in  the  statute,  only  so  far  as  may  be  necessary  to  permit  the  train  to  be 
operated  to  a  point  at  which,  due  regard  being  had  to  all  the  circum- 
.stances  of  the  particular  case  and  the  character  of  the  train,  the  train 
crew  could  be  relieved  or  be  allowed  to  take  the  rest  required  by  the 
statute. 

3.  When  a  freight  train  was  reported  at  a  way  station  to  have  already  exceeded 

the  sUitutory  limit  of  service  and  there  was  no  extraordinary  exigency 


APPENDIX   H.  957 

that  required  this  freight  train  to  go  on  to  its  final  terminal,  if  the  jury 
finds  that  such  train  reasonably  could  have  been  tied  up  at  such  way 
station  so  as  to  give  the  employees  the  rest  required  by  the  statute,  the 
railroad  officials  were  not  justified  in  permitting  them  to  continue  to 
exceed  the  statutory  limit  of  labor.  If  there  has  been  a  delay  produced 
by  justifiable  causes  at  the  time  the  train  reached  a  way  station,  still  if 
there  was  a  point  either  at  that  station  or  some  other  where  the  train 
reasonably  could  have  been  tied  up,  or  a  new  crew  put  on,  the  train  could 
only  be  operated  after  the  limit  of  10  hours  until  a  suitable  stopping  place 
could  be  reached;  and  it  is  the  railroad's  duty  to  have  suitable  stopping 
places  where  rest  can  be  had  for  its  employees,  at  proper  places  along  its 
road,  proportionate  to  the  exigencies  of  the  business. 
4.  Same  rule  laid  down  where  train  enroute  is  reported  at  a  way  station  when 
the  period  of  service  for  the  train  crew  is  within  a  few  minutes  of  the 
expiration  of  the  16-hour  period  of  service  and  there  is  no  reasonable 
expectation  of  being  able  to  make  the  final  terminal  within  the  16  hours. 

Ernest  F.  Cochran,  United  States  attorney,  and  Walter  N. 
Brown,  special  assistant  United  States  attorney,  for  plaintiff. 
Cothran,  Dean  &  Cotliran,  for  defendant. 

JUDGES  CHARGE. 

Smith,  District  Judge,  charging  jury: 

Mr.  Foreman  and  gentlemen  of  the  jury:  I  instruct  you 
in  this  case  that  this  statute  which  we  ordinarily  call 
"Hours  of  Service  Act"  is  a  remedial  statute  of  the  highest 
character.  It  was  passed  for  the  protection  both  of  the 
employee  and  of  the  public.  The  lawmaking  power  of  this 
country  has  concluded  that  the  human  machine,  the  em- 
ployee of  a  railroad,  under  the  stress  and  strain  of  railway 
service  in  the  operation  of  a  railroad  train,  should  not  be 
subjected  to  more  than  16  consecutive  hours  of  that  service. 
After  that  period,  the  theory  of  the  statute  is  that  the 
human  machine  becomes  fagged  and  is  not  properly  ca- 
pable of  providing  for  the  safety  of  tlie  train,  the  safety  of 
the  public,  the  safety  of  itself,  the  human  faculties  become 
weary  and  fagged,  and  he  must  have  rest  in  order  to  be 
restored  to  the  normal  condition  of  capability,  so  they  pro- 
hibit the  employee  being  subjected  to  that  strain  for  more 
than  16  hours'  continuous  employment. 


958  HOURS    OF    SERVICE    ACT. 

As  I  said  before,  it  is  for  the  protection  of  the  public  who 
are  travelers  upon  passenger  trains  and  whom  it  may  be 
desired  to  protect  from  casualties  and  accidents  and  de- 
struction through  the  enfeebled  energies  of  a  man  who  has 
been  on  service  for  over  16  hours.  It  is  intended  for  the 
protection  of  the  public  itself,  and  intended  for  the  pro- 
tection of  the  human  employee ;  but  the  operation  of  rail- 
roads must  be  in  the  hands  of  skilled,  responsible  people, 
and  necessarily,  inasmuch  as  they  are  to  be  guided  by  the 
principle  of  the  safety  of  the  public  first,  they  can  not  be 
controlled  as  to  what  are  proper  delays  which  may  keep  a 
certain  train  back,  or  the  proper  methods  of  providing  for 
accidents  that  happen  on  their  roads  in  the  providing  and 
changing  of  trains  to  meet  the  public  accommodation.  The 
persons  in  charge  of  the  railway  administration  are  the 
persons  really  in  charge  of  the  operation  of  a  railroad  who 
are  responsible,  and  they  are  held  to  a  heavy  responsibility, 
and  therefore  they  must  be  given  corresponding  powers, 
but  it  must  be — whatever  action  they  take  must  be — com- 
patible with  the  law  that  the  human  machine  must  not  be 
worked  more  than  16  hours  consecutively,  except  in  excep- 
tional instances. 

A  passenger  train  or  a  freight  train  might  meet  an  un- 
avoidable accident  at  a  way  station.  If  it  is  possible  to 
avoid  it,  the  reason  of  the  rule  is  not  to  delay  and  hold  up  a 
train  of  passengers,  and  if  it  is  a  freight  train  you  can  not 
hold  up  a  freight  train  if  at  the  point  of  the  accident  it 
could  be  held  to  the  eight  hours'  rest  that  is  required  by  the 
statute  only  at  the  risk  of  danger  to  other  trains ;  therefore 
the  statute  makes  certain  provisions  regulating  in  such 
cases  the  enforcement  of  the  statute,  and  I  construe  that 
to  mean  that  the  provisions  of  the  act,  so  far  as  requiring 
16  consecutive  hours  of  labor,  mean  only  that  the  train  may 
be  operated  after  that  limit  until  a  suitable  stopping  place 
can  })e  reached,  and  it  is  the  railroad's  duty  to  have  suitable 
stopping  places  where  rest  can  be  had  for  its  employees 
at  proper  places  along  its  route,  proportionate  to  the  exi- 
gencies of  the  ])usiness. 


APPENDIX  H.  959 

NoAV,  that  is  my  instruction  to  you;  I  do  not  think  that 
there  has  been  proven  in  this  case  that  the  brake  beam 
might  not  have  been  due  to  unavoidable  accident.  I  think 
the  facts  show  that  there  was  an  inspection  at  the  last  place 
the  train  left ;  it  is  not  shown  that  it  was  an  improper  in- 
spection, and  the  conductor  of  this  train  left  the  place  under 
circumstances  which  would  lead  him  to  presume  that  the 
train  and  the  cars  were  in  good  operating  condition.  But 
there  may  have  been  unavoidable  accidents  elsewhere  which 
caused  what  is  called  a  detouring  of  other  trains  from  a 
different  route  to  this,  so  as  to  load  this  line  of  transporta- 
tion with  more  than  the  usual  amount  of  travel ;  yet  the 
testimony  shows  that  was  not  unexpected,  for  the  casualties 
which  are  alleged  to  have  caused  the  detouring  of  trains, 
with  the  exception  of  a  single  train  on  what  is  known  as 
the  Asheville  Division,  had  been  known  for  several  days, 
so  that  the  railroad  officials  had  been  informed  that  this 
part  of  the  railroad  would  be  loaded,  so  to  say,  with  this 
enhanced  or  increased  or  enlarged  press  of  transportation 
by  increasing  the  number  of  trains,  and  they  were  to  be 
provided  for,  and  the  delays  so  occasioned  are  not  such 
delays  as  the  act  contemplates. 

At  the  same  time  the  testimony  shows  that  this  train  had 
been  delayed  nearly  eight  hours  at  a  place,  Mount  Zion,  be- 
fore reaching  Spartanburg,  and  before  leaving  Spartan- 
burg, in  time  sufficient  to  notify  the  officials,  and  they  ad- 
mit that  they  were  notified,  that  this  train  was  eight  hours 
delayed  then ;  and  that  it  left  Spartanburg  only  six  minutes 
less  than  the  full  16  hours  time,  and  that  when  it  left  Spar- 
tanburg, it  left  Spartanburg  under  conditions  in  which  the 
train  dispatcher  who  was  in  charge  of  this  train  knew  of 
the  consequent  delays  which  would  delay  between  Spar- 
tanburg and  Greenville;  that  is  to  say,  that  although  it  left 
Spartanburg  with  only  six  minutes  to  its  credit,  when  it  left 
Greers,  a  few  miles  from  Spartanburg,  it  was  more  than 
two  hours  still  later,  and  was  more  than  two  hours  over  the 
16-hour  time  limit,  and  it  did  not  reach  Greenville  vintil  20 
minutes  past  5,  or  19  hours  and  5  minutes  in  the  course  of 


960  HOURS    OF    SERVICE    ACT. 

its  transit,  or  3  hours  and  5  minutes  over  the  statutory- 
limit. 

Now,  I  charge  you,  gentlemen,  that  if  this  accident  caus- 
ing delay  had  occurred,  say,  between  Greers  and  Spartan- 
burg, or  before  reaching  Greers,  or  if  the  train  had  left 
Spartanburg  with  the  reasonable  expectation  of  being  able 
to  make  Greenville  within  the  16  hours,  and  there  occurred 
an  unexpected  and  unavoidable  delay  from  the  act  of  God, 
or  unavoidable  casualty  or  unavoidable  accident  between 
Spartanburg  and  Greenville,  that  in  that  case  the  railroad 
would  have  had  a  right  to  require  these  train  operators  to 
operate  that  train  to  the  first  proper  stopping  place,  which 
might  vary  according  as  it  was  a  passenger  or  a  freight 
train ;  but  at  the  first  proper  stopping  place  where  its 
crews  could  be  replaced  or  the  train  could  be  tied  up  the 
crew  should  have  been  given  a  rest;  and  that  if  Spartan- 
burg was  a  proper  stopping  place,  or  if  Spartanburg  Junc- 
tion was — and  from  this  testimony  if  you  believe  it  was — at 
which  this  train  could  have  either  had  its  crew  replaced  or 
at  which  it  could  have  tied  up  so  as  to  give  the  crew  on 
service  necessary  rest,  then  it  was  the  duty  of  the  railway 
officials  to  so  provide,  as  they  knew  that  it  could  not  reach 
Greenville  within  the  stipulated  time.  And  the  same  thing 
as  to  Greers ;  when  the  train  was  reported  at  Greers  it  had 
already  exceeded  the  statutory  limit  of  time  service,  and  I 
charge  you  that  from  tlie  testimonj^  it  appears  tliat  the  train 
could  have  tied  up  at  Greers,  and  it  does  not  appear  that 
it  was  a  passenger  train,  or  that  there  was  any  extraordi- 
nary exigency  that  rec[uired  this  freight  train  to  go  on  to 
Greenville  so  as  to  exceed  the  statutory  limit  of  time. 
Therefore,  if  you  find  that  either  at  Spartanburg  or  at 
Greers  that  this  train  reasonably  could  have  been  tied  up, 
under  this  testimony,  so  as  to  give  the  employees  the  rest 
required  by  the  statute,  the  railroad  officials  were  not  justi- 
fied in  pei-mitting  them  to  e.xcecd  the  statutory  limit  of 
]a])or. 

If,  Mr.  Foreman,  the  jury  finds  under  this  charge  that  at 
Spartanburg  or  Greers  tliis  train  could  have  been  tied  up — 


APPENDIX    H. 


961 


as  I  charge  you  under  the  evidence,  there  has  been  shown 
no  reason  for  an  unexpected  or  unavoidable  delay  caused 
by  an  unavoidable  and  unforeseen  casualty  between  Spar- 
tanburg and  Greers — if  you  find  that,  you  will  simply  write 
the  word  "guilty,"  date  it,  and  sign  your  name.  If  the 
jury,  however,  find  neither  of  those  places  w^ere  places  at 
which  this  crew  could  be  rested,  or  a  new  crew  be  put  on, 
in  that  case  you  will  find  "not  guilty,"  sign  your  name  as 
foreman,  and  date  it. 

Mr.  Cothran".  We  except  to  the  court's  charge  in  the 
construction  of  the  statute,  to  the  effect  that  notwithstand- 
ing there  may  have  been  a  delay  produced  by  justifiable 
causes  at  the  time  the  train  reached  Spartanburg,  still  if 
there  was  a  point  either  at  Spartanburg  or  at  Mount  Zion 
or  at  Greers  where  they  could  have  tied  up  the  train  it  was 
their  duty  to  do  so.  Our  construction  of  the  law  contended 
for  being — and  we  ask  your  honor  to  charge  to  that  effect — 
that  the  defendant  railway  company  is  entitled  to  credit 
upon  a  charge  of  18  hours  and  50  minutes,  or  2  hours  and 
50  minutes  overtime,  for  the  delays  caused  at  Concord  by 
a  broken  beam,  at  Gastonia  by  a  broken  coupler,  and  by 
the  delay  at  Lowell,  which  was  produced  directly  by  the 
delay  at  Concord  and  the  delay  at  Gastonia,  having  the  ef- 
fect of  throwing  train  second  71  out  of  its  schedule,  mak- 
ing a  total  credit  of  3  hours  and  5  minutes. 

Court.  On  that  I  rule  that  the  occurrence  of  an  accident 
or  delay  by  the  act  of  God  or  any  case  of  casualty  or  un- 
avoidable accident  wiiile  the  train  is  in  course  of  transit 
from  one  terminal  point  to  another  does  not  mean  that  the 
entire  act  is  suspended  as  to  that  train.  To  hold  that  the 
entire  act  would  be  suspended  as  to  that  train  w^ould  be  to 
hold  that  the  16  hours'  limit  did  not  apply  to  any  train  be- 
tween terminals  during  the  progress  of  whose  transit  be- 
tween terminals  any  delay  occurred  from  the  exempting 
causes  named  in  the  statute.  Tlie  delay  might  be  any  num- 
ber of  hours,  from  5  to  10,  and  I  hold  that  the  statute  does 
not  mean  that  as  to  that  train  the  operative  period  of  service 
is  extended  from  16  to  21  or  26  hours,  according  as  some 


962  HOURS    OF    SERVICE    ACT. 

delay  from  the  exempting  causes  may  occur  whilst  the  train 
is  in  transit.  I  construe  the  statute  to  mean  that  the  hours 
of  service  shall  be  extended  in  such  cases  only  so  far  as 
may  be  necessary  to  permit  the  train  to  be  operated  to  a 
point  at  which,  due  regard  being  had  to  all  the  circum- 
stances of  the  particular  case  and  the  character  of  the 
train,  the  train  crew  could  be  relieved  or  be  allowed  to  take 
the  rest  required  by  the  statute. 
Verdict  for  Government. 


APPENDIX   I.  953 


APPENDIX  I. 

BOILER  INSPECTION— AMENDATORY  ACT. 

An  Act  to  amend  an  Act  entitled  "An  Act  to  promote 
the  safety  of  employees  and  travelers  upon  railroads  by 
compelling  common  carriers  engaged  in  interstate  commerce 
to  equip  their  locomotives  with  safe  and  suitable  boilers  and 
appurtenances  thereto,"  approved  February  seventeenth, 
nineteen  hundred  and  eleven. 

Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled.  That 
section  two  of  the  Act  entitled  "An  Act  to  promote  the 
safety  of  employees  and  travelers  upon  railroads  by  com- 
pelling common  carriers  engaged  in  interstate  commerce  to 
equip  their  locomotives  with  safe  and  suitable  boilers  and 
appurtenances  thereto,"  approved  February  seventeenth, 
nineteen  hundred  and  eleven,  shall  apply  to  and  include  the 
entire  locomotive  and  tender  and  all  parts  and  appurten- 
ances thereof. 

Sec.  2.  That  the  chief  inspector  and  the  two  assistant 
chief  inspectors,  together  with  all  the  district  inspectors, 
appointed  under  the  Act  of  February  seventeenth,  nineteen 
hundred  and  eleven,  shall  inspect  and  shall  have  the  same 
powers  and  duties  with  respect  to  all  the  parts  and  appur- 
tenances of  the  locomotive  and  tender  that  they  now  have 
with  respect  to  the  boiler  of  a  locomotive  and  the  appur- 
tenances thereof,  and  the  said  Act  of  February  seventeenth, 
nineteen  hundred  and  eleven,  shall  apply  to  and  include  the 
entire  locomotive  and  tender  and  all  their  parts  with  the 
same  force  and  effect  as  it  now  applies  to  locomotive  boilers 
and  their  appurtenances.  That  on  the  passage  of  this  Act 
all  inspectors  and  applicants  for  the  position  of  inspector 


964  AMENDATORY   ACT. 

shall  be  examined  touching  their  qualifications  and  fitness 
with  respect  to  the  additional  duties  imposed  by  this  Act. 

Sec.  3.  That  nothing  in  this  Act  shall  be  held  to  alter, 
amend,  change,  repeal,  or  modify  any  other  Act  of  Congress 
than  the  said  Act  of  February  seventeenth,  nineteen  hun- 
dred and  eleven,  to  which  reference  is  herein  specifically 
made,  or  any  order  of  the  Interstate  Commerce  Commission 
promulgated  under  the  Safety  Appliance  Act  of  March 
second,  eighteen  hundred  and  ninety-three,  and  supplemen- 
tal Acts. 

Sec.  4.  That  this  Act  shall  take  effect  six  months  after 
its  passage,  except  as  otherwise  herein  provided. 

Approved,  March  4,  1915. 


^»'  •■■  '"■<'i!i^ 


INDEX  TO 
FEDERAL  EMPLOYERS'  ACT. 


[References  are  to  pages.] 

Abatement- 
Action,  see. 

Act  of  1906— 

Oklahoma  constitution  did  not  adopt,  39,  note. 

Statute,  545. 

Valid  in  District  of  Columbia  and  Territories,  40. 

Act  of  1  SOS- 
Federal  courts'  construction  of,  followed  by  State  courts,  42. 
Forbids  State  legislation  on  subject,  34. 
In  pari  materia  with  Safety  Appliance  Acts,  42. 
Liberally  construed,  40,  41. 
Object  and  purpose,  1. 
Remedial,  41. 
Repeal,  effect  on  State  legislation,  36. 

Action — 

Accrues,  when,  232. 

Administrator  brings,  213,  214,  233. 

based  on  deceased's  right  of  action,  218. 
Beneficiary  can  not  bring,  214. 

Common  law  action  does  not  lie,  36,  note,  51 ;  39,  note. 
Defense  that  action  only  lies  on  statute,  37,  note  b\*. 
Dismissal,  314. 

Election,  as  to  court  requiring,  305. 
Employee,  .tee. 

Employee  can  only  sue  under  Federal  statute,  31,  34. 
Excludes  all  other  statutes,  34. 
Failure  of  deceased  to  bring,  219. 
Foreign  administrator  may  maintain,  217. 
Instantaneous  death,  219. 
Joinder  of  different  causes  of  action,  304,  220. 

with  action  for  a  wilful  injury,  292,  note  11. 

965 


966  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Action — Continued. 

Judgment  for  deceased  a  bar  to  another  action,  233. 

Negligence  basis  of  action,  290. 

New  cause  of  action  given  beneficiary,  293. 

No  new  cause  of  action  given  employee,  292. 

Statute  of  limitations,  230. 

Survival,  259. 

effect  on  measure  of  damages,  259,  262. 
Test  of,  riglit  to  bring,  69. 
Venue,  289,  312. 
When  must  be  brought,  69,  230. 
Wilful  injury  statute  does  not  cover,  292. 

joinder  with  action  for  negligence,  292,  note  11. 
W^orkmen's  compensation  act,  no  action  under,  36,  note  51. 

Administrator- 
Action  based  on  deceased's  right  of  action,  218. 

brings,  213,  214,  233. 
Costs,  not  liable  for,  234. 
Failure  of  deceased  to  bring,  219. 
Foreign  administrator  may  sue,  217. 

Judgment  for  deceased  a  bar  to  administrator's  action,  233. 
Substituting  for  beneficiary,  215,  309. 

statute  of  limitations,  215. 
Suit  brings,  213,  214,  233. 

Admiralty  Rule — 

Apportionment  of  damages,  167. 

commended,  171. 

origin,  169. 
Alaska- 
Statute  applies  to,  43. 

Allen- 
Beneficiary  entitled  to  damages,  223,  235. 

Amendments — 

Local  practice  controls,  216,  294,  296,  302,  note  49,  303. 
Statute  of  limitations,  306. 
To  meet  the  evidence,  306. 

Annuity  Table — 

Use  of,  as  evidence,  250. 

Answer- 
Aiding  complaint,  297,  note  34. 
Defense,  nee. 
Pleading,  nee. 


INDEX   TO    employers'    LIABILITY    ACT.  967 

[References  are  to  pages.] 

"Any  Person" — 

How  words  in  statute  construed,  80,  note  9. 

Appeal  and  Writ  of  Error — 

Amount  in  controversy,  320,  325. 
From  Federal  court,  320. 

state  court,  320. 
Penalty  imposed  for  frivolous  appeals,  325. 
Remittitur  of  damages,  325. 
Right  to  recover  not  raised  below,  39,  note. 
What  questions  can  be  raised  on  appeal,  324. 

Assumption  of  Risk — 

Abolished  in  part,  202. 

Brakeman  jarred  from  train,  203. 

Cinder  pit,  falling  into,  204. 

Contributory  negligence  is  not,  199. 

Defective  appliances,  210. 

Defense  of,  how  presented,  204,  note  18. 

Distinction  between  and  contributory  negligence,  199. 

Engine  tube  bursting,  205. 

Engine  repairer  failing  into  pit,  203. 

Fellow  servants'  negligence  does  not  assume,  208,  note  27. 

Grindstone  bursting,  208,  note  27. 

Horton  case,  205. 

Inspector  caught  between  parallel  trains,  204. 

Master's  negligence  not  assumed,  207,  note  20. 

No  recovery  when  injury  arises  out  of,  173. 

None  when  statute  violated,  198. 

Pile  of  cinders  on  track,  204. 

Question  as  to  assumption,  211. 

Repairs,  promise  to  make,  200. 

Safety  appliance  acts  violated,  207,  471. 

statutes,  198. 

statutes  referred  to,  200. 
Section  hand  removing  rails,  204. 
Statutes  referred  to  in  Act,  198,  200. 
Switchman  shunting  cars,  204. 
Train  detective  injured,  204,  210. 
Unknown  rislv,  199. 
Austria — 

Rule  as  to  fellow  servant,  5.  560. 

B. 

Bastard- 
Damages  for  can  not  be  recovered,  227.     . 


968  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Belgium — 

Rule  as  to  fellow  servant,  5,  560. 

Beneficiaries — 

Adopted  child,  228. 

Alien,  damages  may  be  recovered  for,  235. 

Amendment  of  pleading  to  show,  308. 

Apportionment  of  damages  among,  258,  259. 

Bastard,  227. 

Brother,  224. 

Can  not  maintain  action,  214. 

Complaint  to  recover  damages  for,  301. 

Constitutionality  of  statute  allowing  a  recovery  for,  218. 

Damages,  see. 

Death  of  abates  action,  234. 

Dependency  on  employee,  223. 

Emancipated  child,  228. 

Existence  of  a  jurisdictional  fact,  229. 

proving,  230. 
Legal  liability  to  support  not  necessary,  224. 
New  cause  of  action  given  to,  293. 
Next  of  kin  dependent  on  employee,  223. 

determined  by  state  statute,  225. 
None  in  existence,  222. 
Order  in  which  entitled  to  benefits,  221. 
Posthumous  child.  228. 
Release  of  damages,  giving,  effect,  273. 
Right  to  damages  based  on  deceased's  right,  218. 
Sister,  224. 

Substituting  administrator  for,  215,  309. 
Surviving  deceased,  must,  228. 

complaint  must  show,  228. 
Who  are,  221. 

dependent  on  deceased,  226. 
Widow  separated  from  her  husband,  223. 

Boiler  Maker- 
Helper  of,  falling  into  pit,  97. 

Brakeman — 

Looking  about  yard  for  tool  bag,  100. 

On  passenger  trains,  96. 

When  within  proxiwions  of  statute,  96. 

Branch  Railroad— 

Statute  ap])iical;lc  to,  47. 


INDEX   TO   EMrLOYERS'    LIABILITY   ACT.  969 

[References  are  to  pages.] 

Bridge- 
New  bridge  building,  99. 
Repairing,  70,  72,  73,  82. 
Working  on,  98. 

on  interstate  bridge,  50. 

Burden- 
Contributory  negligence,  to  show,  180. 

Illinois  rule  as  to,  140. 
On  plaintiff  to  show  he  was  engaged  in  interstate  commerce,  83,  IGl,  315. 

0 

c. 

Cab— 

An  instrument  of  interstate  commerce,  56,  note  12. 

Caboose — 

Section  hand  injured  when  asleep  in,  95. 
Trainman  injured  when  asleep  in,  85. 

Canal  Zone — 

Power  of  Congress  in,  43. 

Caretaker — 

Injured  on  dead  engine,  103. 

Carpenter — 

Bridge,  see. 

Working  on  roundhouse,  100. 

Carrier — 

Interstate  commerce,  engaging  in,  43,  83. 

Interurban  roads,  53. 

Liability  enlarged,  5,  note  1. 

Railroad  must  be  to  be  liable,  44. 

Street  railway  company,  53. 

To  whom  liable,  61. 

While  "engaging  in"  interstate  commerce,  43,  83. 

Cars- 
Distributing,  105. 
Empty,  in  interstate  trains,  51,  59. 
Inspecting,  103. 
Repairing,  76,  105. 

in  shop,  101. 

on  switch,  80,  93,  97. 

Children — 

Beneficiaries,  see. 


970  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Chisel- 
Defective,  causing  injury,  211,  note  38. 

Cinder  Pit- 
Falling  into,  204. 

Cleri<s— 

Not  within  provisions  of  statute,  94 

Coal- 
Dumping,  96,  97. 
Mining,  107. 

Unloading  on  vessel,  93,  note. 
Wheeling  into  shop,  96. 

Code  Napoleon — 

Rule  as  to  fellow  servant  under  5,  560. 

Common  Carrier — 

Railroad  must  be  to  be  held  liable,  44. 

Common  Law — 

Death,  no  action  for  lies  at  common  law,  222. 

Interstate  commerce  employee  can  not  sue  at  common  law,  35,  36,  note. 

Rules  modified  by  statute,  1. 

Comparative  Negligence — 

Assumption  of  risk  under,  173. 

Comparison  between  plaintiff's  aad  defendant's  negligence,  159,  162. 

Contributory  negligence,  sec. 

Damages,  see. 

Differs  from  rule  adopted  liy  Federal  statute,  135. 

Florida  statute,  148,  note. 

Georgia,  see. 

Georgia  statute,  134. 

charge  to  jury  under,  141. 

statute  construed,  136,  138. 
Illinois,  see. 

Instructions  must  require  comparisons,  165. 
Jury  mu.st  compare  negligence  of  parties,  165. 
Kentucky,  rule  as  to  not  in  force,  148,  note. 
Origin  of  rule,  133. 

Preponderance  of  negligence  against  defendants  not  sufficient,  164. 
Slight  negligence  of  plaintiff,  effect,  16-1. 
Tennessee,  rule  as  to  not  in  force,  147,  note  43. 


INDEX    TO   employers'    LIABILITY   ACT.  971 

[References  are  to  pages.] 

Comparative  Negligence — Continued 
Verdict,  can  not  be  directed,  177. 
Wilful  injury,  no  place  in,  164. 
Wrong  in  principle,  562. 

Complaint- 
Aided  by  answer,  297,  note  34. 
Pleading,  see. 

Congress — 

Canal  Zone,  power  in,  43. 

Constitutionality,  see. 

District  of  Columbia,  power  in,  43. 

Interstate  commerce,  power  over,  27,  337. 

Power  limited  to  interstate  commerce,  7,  27,  337. 

to  enact  statute  of  1908,  19. 

to  increase  liability  of  master,  7,  S. 

to  enact  fellow  servant  rule,  7. 

over  railroad,  123,  337. 
Territory,  power  in,  43. 

Cooley,  Judge — 

Address  on  interstate  commerce,  56,  note  12. 

Constitutionality — 

Act  of  1906  invalid,  24,  25. 

Act  of  1908  valid,  22. 

Beneficiaries,  statute  concerning  valid,  218. 

Classifying  instrumentalities,  18. 

Congress,  see. 

Congress'  power  to  enact  statute  of  1908,  19. 

power  over  interstate  commerce,  337. 

power  to  increase  liability  of  master,  7,  S. 

power  over  railroads,  123,  337. 
Contract  of  release  forbidding,  14,  22,  note;  193,  300. 
Contributory  negligence,  abrogating  rule  as  to,  22,  7wte;  300. 
Death,  statute  allowing  a  recovery  for  valid,  214. 
Fellow  servant,  allowing  a  recovery  for,  11,  13. 

as  to  past  contracts,  14. 
Fifth  section  of  statute,  valid,  22,  note;  300. 

amendment,  17,  7iote  25. 
Fourteenth  amendment,  13,  15. 
Interstate  commerce  legislation,  27. 
Intrastate  servant  causing  injury,  117. 
Interrelation  of  intrastate  and  interstate  emplo;/ees,  29. 
Limiting  statute  to  employees  of  railroad  companies,  15. 


972  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Constitutionality — Continued. 
Nebraska  statute  valid,  23. 
Power  of  Congress,  7,  27. 
Release  of  damages,  forbidding,  265,  267. 
State  legislation,  effect  of  Act  of  1908  on,  29,  31,  34. 
Statute,  power  of  Congress  to  enact,  19. 
Third  section  valid,  22,  note. 
Wisconsin  statute  valid,  23. 

Construction — 

How  statute  construed,  40,  42. 

Liberally  construed,  41. 

Remedial,  42. 

State  courts  must  follow  Federal  courts'  construction,  42. 

"While,"  discussed,  S3. 

Contract — 

Modification,  2. 

Release  from  liability,  forbidding,  14,  265,  267. 

Validity  of  section  forbidding,  22,  7wte;  265,  267. 

Contributory  Negligence — 

Admiralty  rule,  167. 

commended,  171. 

origin,  169. 
Assumption  of  risk,  see. 

Assumption  of  risk,  when  statute  enacted,  173. 
Basis  of  action,  290. 
Burden  to  show,  ISO. 

in  Illinois,  140. 
Common  law  rule,  preventing  recovery,  131. 
Comparative  negligence,  see. 
Comparative  negligence  introduced  by  statute,  133. 

origin,  133. 
Counterclaim  as  to  damages  not  allowed,  ISl,  note  98. 
Damages  reduces,  253. 
Defeats  action,  does  not,  292. 
Defense  to  action  at  common  law,  130,  131. 

defendant  has  burden  to  show,  180. 

how  presented,  ISO. 
Defined,  131. 
Degrees  of  negligence,  132. 

not  adopted  by  statute,  177. 
Georgia  rules  as  to,  136,  141. 
Cross  and  Kliglit  distinguished,  157. 
Illustrations,  l(i6. 
Instructions  concerning,  179,  256. 
Modification  of  rules  as  to,  2. 
Negligence,  see. 


INDEX    TO    employers'    LIABILITY   ACT.  973 

[References  are  to  pages.] 

Contributory  Negligence — Continued. 
No  defense,  loO. 
Pleading  as  a  defense,  311. 
Proximately  contributing  to  injury,  131. 
Recovery,  does  not  prevent,  173. 
Rule  concerning,  jury  must  consider,  ISO. 
Safety  Appliance  Acts  violated,  180. 
Statute  concerning,  129. 

modified  rules  concerning,  2. 

violated,  effect,  129. 
Validity  of  statute  as  to,  22,  noic. 
Wisconsin  statute,  example  and  practice,  182,  197. 

Costs — 

Administrator  not  liable  for,  234. 
Poor  person,  234,  549. 

Counterclaim — 

Not  allowed,  181,  note  98. 

Coupling — 

Employee  making  within  Federal  Liability  Act,  97. 

Courts- 
Jurisdiction  of  Federal  courts,  275,  287. 
of  state  courts,  275,  276,  57G,  580. 
Removal  of  cause  to  Federal  courts.  287. 

joinder  of  different  causes  of  action,  288. 
State  courts  follow  Federal  courts'  construction  of  statute,  42. 
Where  action  brought,  289. 

Cut-Off— 

Employee  engaged  in  building  not  engaged  in  interstate  commerce,  75 


Damages — 

Actual  damages  only  recoverable,  237. 
Administrator  recovers,  213,  214. 
Admiralty  rule  concerning,  167. 

apportionment  required,  167. 

commended,  171. 

origin.  169. 
Adopted  child,  228. 
Alien  beneficiary,  235. 
Annuity  tables  to  ascertain  measure  of,  250. 


974  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Damages — Continued. 
Apportionment,  173. 

among  beneficiaries,  258. 

difficulty  to  make,  172. 

Georgia  statute  on,  143. 

how  made,  173. 

no  exact  rule  for,  175. 

verdict  should  make,  258. 
Bastard,  damages  for  not  recoverable,  227. 
Beneficiaries,  see. 
Benefits  accepted,  272. 
Caution  in  considering  past  decisions,  236. 
Contract  releasing  forbidden,  265. 

beneficiary  not  bound  by,  273. 

constitutionalitj'  of  statute  as  to,  267. 

release  of  damages  by  beneficiary,  273. 
Contributory  negligence  reducing,  253. 

apportionment,  173. 

when  does  not  diminish,  182. 
Creditors   not  entitled  to,  250. 
Costs,  recovery,  234. 

Declarations  of  deceased  as  affecting,  248. 
Dependency  of  beneficiary,  247. 
Distribution,  259. 

Earnings  of  deceased,  can  not  exceed,  246,  note  86. 
Emancipated  child,  228. 
Estate  of  deceased,  does  not  belong  to,  250. 
Fatal  injury  before  1910,  237. 
Federal  statute  controls  measure  of,  236. 
Illustrations  of  amounts,  251. 
Instantaneous  death,  217,  219,  259,  261,  twfc  30. 
Instructions  concerning,  243,  note  19. 

when  contributory  negligence  invobed,  256. 
Insurance  does  not  reduce,  273. 
Interest  can  not  be  recovered,  250. 
Judgment  on  state  statute  as  res  judicata,  215. 
Measure  when  employee  sues,  237,  7iotc  5. 

differs  according  to  relation  of  beneficiary,  242. 

for  beneficiary,  242. 
Minor  child's,  244. 
Next  of  kin  dependent  on  employee,  223. 

how  determined,  225. 
No  limit  fixed  by  statute,  237,  note  5. 
Order  of  distribution,  221. 
Pain  and  .suffering  wl'.cie  death  occurs.  237. 


INDEX   TO    employers'    LIABILITY    ACT.  975 

[References  are  to  pages.] 

Damages — Continued. 

Pecuniary  damages  only  given  beneficiary,  239. 

defined,  240. 
Posthumous  child,  228. 
Prospective  gifts  by  deceased,  242,  not''  17. 
Punitive  can  not  be  recovered,  237. 
Question  for  jury  as  to  amount,  319. 
Remittitur  on  appeal,  325. 
Set-off  against  not  allowed,  181  note  98. 
Sister,  damages  for,  224. 
Solatium,  by  way  of,  243. 
Survival  of  action  for,  259,  262. 
Verdict  apportions,  258. 
Who  entitled  to,  221. 
Wisconsin  rule,  182. 

Death- 
Accrual  of  action,  232. 
Beneficiary  dying,  234. 
Instantaneous,  217,  219. 

damages  recoverable,  259,  261,  note  30. 

Defenses — 

Local  practice  followed,  310,  311. 

District  of  Columbia — 

Act  of  1906,  valid  in,  40. 

Powers  of  Congress  over  carriers  within,  23,  7wte  28. 

Statute  applies  to,  62. 

E. 
Election — 

Requiring  plaintiff  to  elect,  305. 

Employee — 

Any  employee,  62. 

"Any  person,"  how  words  in  statute  construed,  80,  note  9. 

Block  system,  installing,  98. 

Boilermaker's  helper,  97,  100  note  49. 

Brakeman,  96. 

looking  about  yard  for  tool  bag,  100. 

on  passenger  train,  96. 
Bridge,  new,  building,  99. 

repairing,  72,  73,  82. 

working  on,  98. 
Caboose,  sleeping  in  when  injured,  85. 


976  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Employee — Continued. 

Caretaker  of  dead  engine,  97,  103. 
Carpenter  on  roundhouse,  100. 
Cars,  distributing,  105. 

coupling,  98. 

inspecting,  102. 

repairing,  76,  105. 

in  shop,  101. 

on  switch,  93. 
Clerks,  94. 
Coal  dumping,  95,  96,  98. 

chute  building,  107. 

mining,  107. 

unloading  onto  ship,  93,  note. 

wheehng  into  shop,  96. 
Coaling  interstate  engine,  96. 
Coupling  cars,  98. 
Cut-off,  building,  75. 

Employed  in  both  intrastate  and  interstate  commerce,  91. 
Employees  covered  by  statute,  93. 
Engine,  cleaning  in  roundhouse,  98,  105. 

boiler  repairing,  105. 

cooling,  96. 

inspecting,  97. 

oiling,  94. 

operating  on  trial  trip,  94. 

repairing  in  roundhouse,  100. 

steaming  up,  107. 

wiper,  98,  105. 
Engineer,  106. 

falling  into  roundhouse  pit,  107. 

inspecting  engine,  97. 
Everybody  included,  Congress  could  include,  93. 
Express  agent,  104. 
Ferry  boat,  operating,  93,  note. 
Fireman  shifting  cars,  95. 
Freight  handlers,  93. 
Gardener  at  depot  grounds,  100. 
Gatekeeper,  91,  note  23. 
Girder  in  machine  shop,  putting  in,  106. 
Going  to  and  from  work,  88,  101,  102,  125. 
Hostler  of  engine,  107. 

Ice,  getting  to  cool  water  for  passenger  coach,  96,  127,  note  2. 
Incidental  alisence  from  scene  of  work,  72. 
Injured  in  line  of  duty,  must  be,  290,  note  1. 
Inspecting  train,  108. 
Intent  to  engage  in  work,  71. 


INDEX    TO    employers'    LIABILITY   ACT.  977 

[References  are  to  pages.] 
Employee — Continued. 

Interstate  commerce,  must  be  engaged  in,  64. 

Intrastate  employee  injuring  interstate  employee,  111,  117. 

train  hauling,  125. 

train  striking  employee,  84,  note  16. 
Lineman,  93,  98. 

Loading  engine  with  coal,  95,  96,  99. 
Machinist,  70. 

Mail  for  work  gang,  going  after,  103,  107. 
Meaning  of  word  "employee,"  62,  jiote  1. 
Mechanic  making  repairs,  93,  107. 

running  machine,  107. 
Millwright,  70. 

Must  be  servant  of  carrier,  60,  61. 
Oiling  engine,  94. 

On  way  to  work,  88,  101,  102,  125. 
Original  construction  of  railroad,  74. 
Plaintiff,  see. 
Porter  on  car,  96. 

Pullman  car  employee,  104,  127,  note  2. 
Pumping  water,  96,  101. 
Rails,  loading  on  car,  82. 

unloading,  83,  note  15. 
Repairing  car,  75,  105. 

car  on  switch,  80. 

instrumentalities  of  interstate  commerce,  70,  72. 
Riding  on  empty  car,  97. 

Right  of  action  only  lies  under  Federal  act,  31,  34,  36,  39,  note. 
Round  house  repairing,   100. 
Seal  clerk,  listing  cars,  94,  106.  127,  note  2. 
Section  hand  sleeping  in  car,  95. 

repairing  track,  93,  100. 
Servant  of  defendant,  injured  person  must  be,  62,  64,  86. 
Ship,  operating,  93,  note. 
Signal  wires,  laying,  93. 
Snow,  sweeping  out  of  switches,  94. 
Splinter  injuring  eye,  100,  107. 
Station  agents,  94. 

Steam  shovel,  operating,  74,  78,  note  4. 
Stencils,  cleaning,  70. 
Street  car  conductor,  106. 
Surgeon's  malpractice,  104,  105. 
Switch  repairing,  73,  78,  note  4;  94,  100. 
Switching  cars,  58,  92,  95,  98,  108. 

with  intent  to  immediately  move  interstate  train,  108. 
Switchman,  106. 
Telegraph  lines,  repairing,  98. 

operator,  93. 


978  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Employee — Continued. 

Terminals,  working  on,  93. 
Test  of  right  to  recover,  69,  76. 
Ticket  seller,  91,  note  23;  94. 
Tracks,  laying  additional,  on  bridge,  82. 

relaying,  82,  note  14. 

repairing,  70,  73,  76,  78,  note  4;  79,  93. 
Trainman,  70. 
Train,  making  up,  97. 
Trestle,  working  on,  98. 
Turmel,  building,  105. 
Unloading  car,  96. 
United  States,  of,  549. 
Water  hauling,  106. 
Weigher  of  interstate  cars,  96. 

What  employees  may  sue  under  Federal  statute,  62. 
When  he  enters  on  work,  85,  88. 
When  not  engaged  in  interstate  commerce,  105. 
While  engaged  in  interstate  commerce,  62,  83. 
Work  must  be  part  of  interstate  commerce,  71. 
Yard  clerk,  listing  cars,  94,  106,  127,  note  2. 

Employment — 

^Meaning  of  word,  62,  note  1. 

Empty  Cars — 

Interstate  train  of  empty  cars,  51,  59. 

Engine — 

Boiler,  repairing,  105. 

Caretaker,  97,  103. 

Cleaning  in  roundhouse,  105. 

Cooling,  96. 

Hostler,  107. 

Inspecting,  97. 

Loading  with  coal,  91,  note  23. 

Oiling,  94. 

Operating  on  trial  trip,  94. 

Repairing  in  roundhouse,  100. 

Steaming  up,  107. 

Engineer — 

Falling  into  roundhouse  pit,  107. 

Inspecting  engine,  97. 

Interstate  engineer,  hauling  intrastate  train,  125. 

England — 

Hulo  as  to  fellow  servant,  5. 
Workmen's  compensation  act,  5. 


INDEX    TO    EJIPLOYERS'    LIABILITY   ACT.  979 

[References  are  to  pages.] 

Evidence — 

Amendment  of  pleading,  to  meet,  306,  308. 

Annuity  tables  may  be  used,  250. 

Burden,  315. 

Declarations  of  deceased,  235,  248. 

Federal  case,  showing,  315. 

Member  of  church,  showing  deceased  was,  243,  note  19. 

Variance,  313. 

Witness,  competency,  317. 

Exclusiveness  of  Statute — 

Statute  excludes  all  other  statutes,  34,  93. 

F. 

Fellow  Servant — 

Adoption  of  rule  as  to,  8. 
Assumption  of  risk  as  to  his  negligence,  205. 
Austria,  rule  in  concerning,  5,  5G0. 
Basis  of  rule  allowing  no  recovery,  8. 
Belgium,  5,  560. 
English  rule,  5. 

European  countries,  rule  in,  4,  6. 
Exclusive  remedy  given  to,  34. 

Fourteenth  Amendment,  effect  on  legislation  concerning,  15,  17,  tiote  25. 
France,  rule  in  concerning,  5,  6,  500. 
Germany,  rule  as  to,  5,  559. 
Harris,  Addison  C,  address  on,  11,  iioti  17. 
History  of,  558. 
Holland's  rule,  5,  560. 

Intrastate  servant,  causing  injury,  111,  117. 
Italy,  rule  concerning,  5,  560. 
Nebraska  statute  construed,  116. 
Railroad  liable  for  his  neglect.  111. 
Swiss  rule,  5,  560. 

Validity  of  statute  allowing  a  recovery  for  his  negligence,  11,  13. 
as  to  past  contracts,  14. 

Ferry  Boat — 

Employees  on  protected  by  statute,  93,  noie. 

Fifth  Amendment — 

Unequal  protection  to  citizens  forbids,  17,  note  25. 

Fireman — 

Shifting  cars,  95. 

Flagman — 

Not  covered  by  statute,  108. 


980  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Florida — 

Comparative  negligence,  statute  on,  148,  tiote. 

Foot  Board — 

Defective,  210. 

Foreign  Countries — 

Law  of  negligence  differs  from  ours,  2. 

Fourteenth  Amendment — 

Effect  on  statute,  13,  15,  17  note  25. 

France — 

Law  as  to  fellow  servant,  5,  6,  560. 

Freight  Handlers — 

Within  terms  of  statute,  93. 


Gardner — 

Keeping  depot  grounds,  lOG. 

Gateman — 

Not  within  terms  of  statute,  91,  noic  23. 

Germany — 

Rule  as  to  fellow  servant,  5,  559. 

Georgia- 
Apportionment  of  damages,  143. 
Comparative  negligence,  statute,  134. 

charge  to  jury  under,  141. 

contributory  negligence  of  servant  before  defendant's  begun,  138. 

differs  from  Federal  statute,  135. 

epitome  of  cases,  144. 

railway  employee  recovering,  142. 

statutes  construed,  134,  136,  138,  144. 

widow  of  employee  recovering,  142. 

H. 
Harris,  Addison  C— 

Address  on  fellow  servant,  11,  ^lote  17. 

Hawaiian  Islands- 
Statute  applies  to,  43. 

Holland- 
Rule  concerning  fellow  scrvjint's  nep.liRonce,  5,  .560. 


INDEX    TO    employers'    LIAEILITY    ACT.  981 

[References  are  to  pages.] 

Hostler  of  Engine — 

When  not  within  statute,  107. 

Hours  of  Labor — 

Safety  Appliance  Index,  see. 

I. 

Illinois — 

Comparative  negligence,  origin  in,  133,  148,  150. 

Defendant's  negligence  clearly  exceeding  plaintiil's,  150. 

Extension  of  rule  of  comparative  negligence,  151. 

Freedom  from  fault,  161. 

Gross  and  slight  negligence  distinguished,  157. 

Ordinary  care  wanting,  151,  153,  155. 

Rule  as  to  comparative  negligence,  148,  151. 

Slight  negligence  on  plaintiff's  account,  151,  155. 

Injury — 

Relalnonship  between  employment  and  accident,  109. 

Instructions — 

Damages,  concerning,  243,  note  19. 

where  contributory  negligence  involved,  25G. 
Generally,  317. 

Insurance — 

Damages  does  not  deduct,  273. 

Intention — 

To  engage  in  interstate  commerce,  71. 

Interest — 

Can  not  be  recovered  on  damages,  250. 

Interurban  Railroad- 
Statute  applies  to,  53. 

Interstate  Commerce — 

"Any  person,"  how  construed,  80,  note  9. 
Block  system,  installing,  98. 
Boilermaker's  helper,  97,  100,  note  49. 
Brakeman,  96. 

looking  about  car  yard  for  tool  bag,  100. 

on  passenger  train,  96. 
Bridge,  new,  building,  99. 

repairing  old,  72,  73,  82,  98. 
Cab,  owned  by  railroad,  56,  note  12. 
Caretaker  of  dead  engine,  97,  103. 
Carpenter  working  on  roundhouse,  100. 
Carriers  in,  affected  by,  43. 
Cars  carrying  interstate  traffic  need  not  cross  state  line,  58. 

coupling,  96. 


982  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Interstate  Commerce — Continued. 

distributing,  105. 

inspecting,  103. 

repairing,  76,  105. 

repairing  in  shop,  101. 

repairing  on  switch,  93. 
Clerks,  94. 
Coal,  dumping,  95,  96,  99. 

mining,  107. 

shipped  from  another  state,  56,  note  12. 

unloading  onto  ship,  96. 

wheehng  into  shop,  96. 
Coaling  interstate  engine,  96. 
Congress,  power  over,  27,  337. 
Cooley's  (Judge's)  address  upon,  56,  note  12. 
Colorado  case,  45. 
Constitutionality,  see. 
Construction  of  railroad,  74. 
Coupling  cars,  98. 

Employee  must  be  engaged  in,  62,  64. 
Engine,  cleaning  in  roundhouse,  98,  105. 

boiler  repairing,  105. 

oihng,  94. 

operating,  94. 

repairing  in  roundhouse,  100. 

steaming  up,  107. 
Engineer,  106. 

falling  into  roundhouse  pit,  107. 

inspecting  engine,  97. 
Every  servant  engaged  in,  78. 
Express  agent,  102. 
Ferry  operating,  93,  note. 
Fireman  shifting  cars,  95. 
Flagman,  108. 
Freight  handler,  93. 
Gardner,  keeping  depot  grounds,  106. 
Gatekeeper,  91,  note  23. 
Girder  in  machine  shop,  removing,  106. 
Going  to  and  from  work,  88,  101,  102,  125. 
Hostler  of  engine,  107. 

Ice,  getting  for  water  cooler  on  car,  96,  127,  note  2. 
Illustrations  of  interstate  commerce,  57. 
Impeding  progress  of  interstate  commerce,  70,  75,  70. 
Incidental  absence  from  scene  of  work,  72. 
Inspecting  interstate  train,  108. 

Interrelation  of  intrastate  and  interstate  employees,  29. 
Int'-rruption  of  course  of  interstate  commerce,  70. 


INDEX   TO    employers'    LIABILITY   ACT.  983 

[References  are  to  pages.] 

Interstate  Commerce — Continued. 

Intrastate  employees,  Congress  can  not  legislate  concerning,  25. 

train  hauling,  125. 
Lessor  and  lessee,  60. 
Linemen,  93,  98. 
Loading  car  with  interstate  traflSc,  56,  note  12. 

with  railroad  rails,  82. 

unloading,  83,  7iote  15. 
Mail  for  work  gang,  going  after,  103,  107. 
Mechanic,  making  repairs,  107. 

running  machine,  107. 
Oiling  engine,  94. 
On  way  to  work,  88,  101. 
Porter  on  car,  96. 

getting  ice  to  put  in  water  cooler,  96,  127  note  2. 
Power  of  Congress  over,  7,  27,  337. 
Railroad  construction  not  interstate  commerce,  74. 

cut-off  building,  75. 

must  be  engaged  in  interstate  commerce,  54. 
Repairing  car,  75,  102. 

car  on  switch,  80. 

instrumentalities  of  commerce,  70,  72. 
Relation  between  employment  and  accident,  109. 
Riding  on  empty  car,  97. 
Safety  Appliance  Act,  44. 
Seal  clerk,  listing  cars,  94,  106,  127,  note  2. 
Section  hand,  sleeping  in  car,  95. 
Signal  wires,  laying,  93. 
Snow,  sweeping  out  of  switches,  94. 
Splinter  injuring  eye,  100,  107. 
Station  agent,  94. 
Steam  shovel,  repairing,  78,  note  4. 

operating,  74. 
Stencils,  cleaning,  70. 
Street  car  conductor,  106. 
Surgeon's  malpractice,  104,  105. 
Switching  cars,  58,  95,  98,  108. 
Switch  repairing,  78,  note  4;  72,  73,  74. 

Switching,  with  intention  to  immediately  move  interstate  cars,  108. 
Switchmen,  106. 
Telegraph  lines,  repairing,  98. 

operator,  93. 
Terminal, working  on,  93. 


984  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Interstate  Commerce — Continued. 
Ticket  seller,  91,  note  23,  94. 
Track  repairing,  70,  73,  76,  78,  note  4;  79,  93. 

additional  laying  on  bridge,  82. 

relaying,  82,  note  14. 
Train,  making  up,  97. 
Trestle,  working  on,  80. 
Tunnel  building,  105. 

Two  companies  operating  over  same  road,  59. 
Unloading  car,  96. 
Water  hauling,  106. 

What  is  engaging  in  interstate  commerce,  54,  346,  347. 
When  not  engaged  in  interstate  commerce,  105. 
While  engaged  in  interstate  commerce,  62,  83. 
Wiper  of  interstate  cars,  78. 
Work  of  injured  employee  must  be  a  part  of  interstate  commerce,  71. 

Intrastate  Employee — 

Injuring  interstate  employee.  111,  117. 

Italy- 
Rule  as  to  fellow  servant,  5,  560. 

interurban  Railway — 

Statute  applies  to,  53. 

J. 

Joinder — 

Different  causes  of  action,  304. 

Judgment — 

In  favor  of  deceased  bars  administrator's  cause  of  action,  233. 

Judicial  Notice — 

Taken  of  United  States  Statute,  489. 

Jurisdiction- 
State  courts  have,  275,  276,  576,  580. 
What  Federal  courts  have,  287. 

Jury— 

Compares  negligence  of  plaintiff  with  defendant's,  165. 
Damages,  assess,  319. 
Questions  for,  319. 
Verdict,  see. 

K. 

Kentucky— 

Coinpurative  negligence  not  in  force  in,  1 18,  nnt<\ 


INDEX    TO    employers'    LIABILITY   ACT.  985 

[References  are  to  pages.] 

L. 

Lessor  and  Lessee — 

Liable  under  statute,  GO. 

Liability  of  Carrier — 

Enlarged,  5,  7iote  1. 

How  question  of  under  statute  raised,  40,  note. 

Test,  110. 

Lineman — 

Statute  applies  to,  93,  98. 

Logging  Railroad — 

Statute  does  not  apply  to,  47. 


M. 


Machinery  Installing — 

Statute  does  not  apply  to,  70. 


Mail- 
Going  after  for  work  gang,  103,  107. 

Malpractice  of  Railroad  Surgeon — 

When  railroad  liable  for,  104,  105. 

Mechanic — 

Repairs,  making,  93. 
Running  machine,  107. 

Mexico — 

Rule  as  to  fellow  servant,  6. 


N. 


Nebraska — 

State  statute  valid,  23,  116. 


Negligence — 

Admiralty,  apportionment  of  damages,  167. 
Basis  of  action,  290. 

Common  law  applicable,  291.  * 

Comparative,  133. 

Georgia  statute  as  to,  134,  136. 

in  Illinois,  148. 

origin  of  rule  of,  133,  148,  150. 
Contributory  negligence,  see. 

Court  telling  jury  a  particular  act  is  negligence.  179. 
Degrees,  132,  177. 


986    .  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Negligence — Continued. 
Fellow  servant's,  208. 
Gross  and  ordinary,  132,  177. 
Highway  signals,  failure  to  give,  201. 
Injured  in  line  of  duty,  must  be,  290,  note  1. 
Intrastate  employee  causing  injury.  111,  117. 
Joinder  of  different  causes  of  action,  220,  304. 
Liability  for,  when  railroad  company  is.  111. 
New  cause  of  action  not  given,  293. 
Ordinary  care  wanting,  151. 

defeats  a  recovery,  153. 

slight,  155,  177. 
Ordinary  and  gross,  177. 
Question  for  jury,  319. 

Relation  between  employment  and  accident,  94,  109. 
Relative  term,  150. 
Safe  appliances,  291. 

place  to  work,  291. 
Slight,  155,  177. 
State  law  violated,  201. 
Two  branches  of  statute,  290. 
Who  liable  for.  111. 
Wilful  injury,  292. 

joinder,  292,  7iote  11. 

Next  of  Kin- 
Beneficiaries,  see. 
Determined  by  state  statute,  225. 

Nonsuit — 

Discretion  of  court,  21G,  note  19. 
Sustaining  motion  for,  314. 

Notice — 

Of  injury  need  not  be  given,  314. 

0. 

Object- 
Purpose  of  statute.  1,  5,  rjote  1;  113. 
To  enlarge  liability  of  carriers,  5,  note  1. 

Oiling  Engine — 

When  is  interstate  commerce,  94. 

Oklahoma — 

State  constitution  did  not  adopt  act  of  1906,  39,  7iote. 

Ontario — 

Rule  as  to  fellow  servant,  6. 


INDEX    TO    employers'    LIABILITY   ACT.  987 

[References  are  to  pages.] 

P. 

Panama  Zone — 

Statute  in  force  in,  43,  62. 

Petition- 
Pleading,  see. 

Pit- 
Falling  into,  211,  note  38. 

Pleading- 
Allegations  that  plaintiff  and  defendant  v,-ere  engaged  in  interstate  com- 
merce, 297. 
Amendments,  216,  294,  296,  302,  note  49,  303. 

to  meet  evidence,  306. 
Answer  aiding  complaint,  297,  note  34. 
Beneficiaries,  allegations  concerning,  301. 
Complaint,  by  what  law  tested,  310,  311. 

by  employee,  294. 
Contributory  negligence,  pleading  as  a  defense,  311. 
Defense,  pleading,  310,  311. 

local  practice  controls,  310,  311. 
Election,  requiring,  305. 
Foot  board,  210. 
Joinder  of  causes  of  action,  304. 
Local  practice  controls,  293. 
New  action  given  beneficiary,  293. 
Negligence,  basis  of  action,  290. 
Petition,  by  what  law  tested,  310,  311. 

by  employee,  294. 
Statute  of  limitations,  pleading,  312. 
Substituting  administrator,  215. 

local  practice  controls,  216. 
Surviving  deceased  beneficiary,  must  be  alleged,  228. 

proving,  230. 
Variance,  313. 
Venue,  alleging,  312. 
Wilful  injury,  joining  292,  note  11. 

Poor  Person — 

Suit  may  bring  without  liability  for  costs,  234. 

Porter — 

On  interstate  car,  96. 

Porto  Rico — 

Statute  in  force  in,  43. 


988  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Practice- 
Amendments,  216,  294,  296,  302,  note  49;  303. 

to  meet  evidence,  306. 
Defense,  local  practice  followed,  310,  311. 
Election,  requiring,  305. 
Instructions  generally,  317. 
Joinder  of  causes  of  action,  304. 
Local  practice  followed,  216,  293. 
Konsuit,  314. 

Notice  of  injury  need  not  be  given,  314. 
Question  for  jury,  319. 
Statute  of  limitations,  pleading,  312. 
Substituting  administrator  for  beneficiary,  215,  309. 

local  practice  controls,  216. 
Surviving  deceased,  must  be  shown  beneficiary  did,  228. 

proving,  230. 
Variance,  313. 
Verdict  apportioning  damages,  258. 

directing,  314. 

Proximate  Cause  of  Injury— 

P.elation  between  employment  and  injury,  94,  109. 

Pullman  Employee — 

Not  within  terms  of  statute,  104;  127,  note  2. 
Release  of  damage,  273,  note  9. 

Pumping  Water- 
Employee  within  statute,  96,  101. 

Purpose  of  Statute — 

To  enlarge  liability  of  employer,  1,  5,  note  1;  113. 

Q. 

Quebec- 
Rule  as  to  fellow  servant's  negligence,  6. 

R. 

Railroad- 
Branch  road,  49. 
Carrier,  nee. 

Common  carrier  must  be,  49. 

Construction  of  road  is  not  interstate  commerce,  74. 
Cut-off  not  devoted  to  interstate  commerce,  50. 
Empty  cars  in  interstate  train,  51. 
Interstate  carrier,  affected,  43. 
Intcrurban,  53. 


INDEX    TO    employers'    LIABILITY   ACT.  989 

[References  are  to  pages.] 

Railroad — Continued. 
Lessor  and  lessee,  60. 
Logging  railroad,  47. 

Private  railroad  not  affected  by  statute,  47,  49. 
Servants  of  defendant  road  must  cause  injury,  IIL 
Street  railway,  53. 
Terminal  tracks,  93. 

Two  companies  operating  over  same  road,  59. 
While  engaging  in  interstate  commerce,  83. 

Rails- 
Loading  on  car,  82. 
Relaying,  82,  note  14. 
Unloading,  82. 

Receiver — 

Action  against,  548, 

Release  of  Damages — 

Beneficiary  releasing,  273. 
Constitutionality  of  statute,  267. 
Contracts  of  release  forbidden,  265,  273. 
Damages,  see. 
Indemnity,  meaning,  273. 
Pullman  car  porter,  273,  7iote  9. 
Receipt  of  relief  money,  272. 
Statute  forbidding,  265. 

Remedial — 

Statute  so  construed,  42. 

Remittitur — 

Of  damages  on  appeal,  325. 

Removal  of  Case  to  Federal  Court — 

Joinder  of  different  causes  of  action,  288. 
Prohibited,  287. 

Repairs — 

Bridge,  82. 
Cars,  105. 

in  shop,  101. 

on  side  track,  97. 

on  tracks,  93. 

on  switch,  80. 
Instrunxentalities  of  interstate  commerce,  70,  72,  100. 
Roundhouse,  100. 


990  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Repairs — Continued. 
Switch,  100. 
Telegraph  lines,  98. 
Tracks,  93. 

Reports — 

Congress,  on  Employer's  Liability  Act,  557. 
accident  reports,  555. 

Risk- 
Assumption  of  Risk,  see. 

Roundhouse- 
Repairing,  100. 

Res  Judicata — 

Judgment  under  state  statute,  215. 

S. 

Safety  Appliance  Act — 

Act  of  1908  in  pari  materia,  42. 
Assumption  of  risk,  none,  198. 

Seal  Clerk- 
Listing  seals  on  interstate  cars,  94,  106,  127,  Jiote  2. 
When  not  engaged  in  interstate  commerce,  106. 

Servant- 
Employee,  see. 

Signal  Wires- 
Laying,  93. 

Sister — 

Dependent  on  deceased,  224. 
Married  sister,  224. 

Snow — 

Sweeping  out  of  switch,  94. 

Splinter- 
Injury  to  eye  by,  100,  107. 

State  Line- 
Need  not  cross  to  constitute  interstate  commerce,  58. 

State  Statutes- 
Effect  of  Act  of  1908  upon,  28,  29,  31,  34. 
Georgia's,  on  negligence,  134. 

construed,  136. 

differs  from  Federal  statutes,  135. 


INDEX   TO    employers'    LIABILITY   ACT.  991 

[References  are  to  pages.] 

State  Statutes — Continued. 

Interstate  commerce  servant  can  not  sue  under,  31,  34,  35,  36,  39,  note. 
Interstate  legislation  not  repealed  by,  39,  note. 
Nullified  by  Act  of  1908,  36. 
Supended  by  Federal  statute,  36. 
Violation  of,  showing  negligence,  201. 

Station  Agent — 

When  within  statute,  94. 

Statute  (Federal)— 

Act  of  1906  invalid,  19,  24,  25. 
Act  of  1908,  545. 

valid  in  part,  19. 
Assumption  of  risk,  what  statutes  create  exceptions,  200. 
Carriers,  to  what  ones  it  applies,  43. 
Construction,  40,  42. 

District  of  Columbia,  Act  of  1906  valid  as  to,  40. 
Effect  of  Act  of  1908  on  state  legislation,  28,  29,  31,  34. 
Employer's  liability  statute,  545,  549. 
English  Employer's  Liability  Act,  599. 
Exclusive  remedy  given,  34.  93. 
Fourteenth  Amendment,  effect  on,  13,  15. 
Interstate  commerce  carriers,  applies  to,  43. 
Interurban  railways,  applies  to,  53. 
Object,  1,  5. 

Oklahoma  constitution  did  not  adopt,  39,  note. 
Power  of  Congress  to  enact,  7,  19,  27. 
Railroads,  to  what  ones  it  applies,  43. 
Relation  between  employment  and  injury,  94,  109. 
Remedial,  42. 

Result  of  decisions  upon,  34. 
Servant,  to  what  class  it  applies,  62,  64,  86. 
State  courts  follow  Federal  courts  in  construing,  42. 
State  legislature,  effect  upon,  28,  31,  34. 
Street  railway,  applies  to,  53. 
Supersedes  state  legislature,  36. 
Territories,  effect  of  Act  of  1906  in,  40. 
United  States  employees,  549. 
Validity  as  to  part  contracts,  14. 
When  it  can  be  applied,  54. 
"While,"  meaning  in  statute,  54. 

Statute  of  Limitations — 

Accrual  of  action  in  case  of  death,  232. 
Action  must  be  brought  within  two  years,  230. 


992  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Statute  of  Limitations — Continued. 
Amendment  of  pleading,  307. 
Answer  as  to,  312. 
Substituting  administrator  for  plaintiff  beneficiary,  215,  309. 

Steam  Shovel — 

Operating,  74,  78,  note  4. 

Street  Railway — 

Statute  applies  to,  53,  106. 

Survival  of  Action — 

Amendment  of  1910,  effect,  219. 
Damages  recoverable,  259,  262. 

Substitution — 

Administrator  for  beneficiary,  215,  309. 

Switch- 
Repairing,  72,  78,  note  4;  100. 
Snow,  cleaning  from,  94. 

Switching  Cars — 

Cars  destined  for  another  state,  95. 

Intent  to  immediately  move  into  interstate  commerce,  108. 

Interstate  cars,  58,  92. 

Switchman — 

When  not  engaged  in  interstate  commerce,  106. 

Switzerland — 

Rule  as  to  fellow  servant,  5. 


Telegraph  Lines — 

Repairing,  98. 

Telegraph  Operator — 

Within  statute,  93. 

Terminal  Tracks — 

Injuries  to  servant  working  on,  93. 

Territories — 

Act  of  1906  valid  in,  40. 
Power  of  Congress  in,  43. 
Railroads  governed  by  statute,  43. 
Statute  applies  to,  62. 


INDEX    TO    employers'    LIABILITY   ACT.  993 

[References  are  to  pages.] 

Test— 

Of  liability,  110. 

Right  of  action  under,  76. 

Ticket  Selle  - 

Application  of  statute  to,  91,  note  23,  94. 

Track — 

Additional,  laying,  82. 

Defective,  210. 

Relaying,  82,  note  14. 

Repairing,  70,  73,  76,  78,  note  4,  79,  93,  210. 

Train — 

Inspecting,  108. 
INIaiiing  up,  97. 

Trainman — 

Application  of  statute  to,  68,  70. 

Trestle — 

Working  on,  98. 

Tunnel — 

Building,  105. 

V. 

Variance — 

Decisions  concerning,  313. 

Venue — 

Where  action  to  be  brought,  289,  312. 

Verdict- 
Damages,  apportions,  258. 
Directing,  314. 
Quotient,  294. 

W. 

Water- 
Hauling,  106. 

Weigher — 

Of  interstate  cars,  96. 

While  Engaged  in  Interstate  Commerce — 

Meaning,  62. 

Rule  as  to,  discussed,  54. 


994  INDEX  TO  employers'  liability  act. 

[References  are  to  pages.] 

Widow — 

Action,  can  not  maintain,  214,  309. 

Beneficiaries,  see. 

Georgia,  statute  as  to,  142. 

Separated  from  husband  when  he  died,  223. 

Wilful  Injury — 

Joinder  of  action  for  with  one  for  negligence,  292,  note  11. 
No  cause  of  action  for  given,  292. 

Wisconsin — 

Constitutionality  of  fellow  servant  statute,  23. 
Damages  under  statute,  rule  as  to,  182. 
Practice  under  state  statute,  197. 

Witness — 

Competency,  317. 

Work- 
Going  to  and  from,  88,  101,  102,  125. 

Workmen's  Compensation  Statute — 

English  Act,  5. 

No  recovery  under  for  interstate  employee,  36,  note  50. 

Writ  of  Error — 

Appeal  and  Writ  of  Error,  see. 


^'^  A  '. 


m 


INDEX  TO 
SAFETY  APPLIANCE  ACT. 


[References  are  to  pages.] 
Accidents- 
Reports  concerning,  555. 

Action — 

Civil  action,  recovering  penalty,  435,  750,  754,  768,  787,  791,  796,  801, 

805,  823,  827,  843. 
Courts,  see. 

Distinction  between  recovering  damages  and  penalty,  435. 
Penalty,  sec. 
Penalty,  action  to  recover  is  a  civil  action,  435,  750,  754,  768,  787,  791, 

796,  801,  805,  823,  827,  813. 
Removal  to  Federal  court,  412,  488. 

Air  Brakes — 

Engine  and  tender  counted  as  two  cars,  768. 
Percentage  to  train  required,  768. 
Transfer  trains,  on,  462. 

Air  Hose- 
Employee  connecting,  engaged  in  interstate  commerce,  780. 
Obviating  necessity  for  grabirons,  416. 

American  Railway  Association — 

Resolution  concerning  drawbar,  332. 

Asli  Pans — 

Statute  concerning,  690. 

Assumption  of  Risk — 

Bumper  on  car,  867. 

Coupling  defective  cars,  867. 

Employee,  when  he  does  not  assume  risk,  471. 

Grab  ''rons,  defective,  455,  note. 

Safety  cock,  in  turning,  867. 

Automatic  Brakes — 

Brakes,  see. 

995 


996  INDEX    TO    SAFETY   APPLIANCE    ACT. 

[References  are  to  pages.] 

B. 

Bad  Order  Card- 
Placing  on  defective  car  no  defense,  411,  791. 

Belt  Railway- 
Cars  used  on  must  be  equipped  according  to  Federal  statute,  367,  735, 
821. 

Boiler  Inspection — 

Statute  concerning,  683,  689. 

Brakemen — 

Constitutionality  of  statute  fixing  number  of  to  train,  459,  note  26. 

Brake  Step — 

Order  of  Interstate  Commerce  Commission  as  to,  616. 

Brakes — 

Automatic,  no  statute  requiring,  459,  note  26. 

Car  must  have  handbrake,  415. 

Failure  to  equip  train  with,  458. 

Handbrakes,  see. 

Negligence  in  not  equipping  train  with,  471,  note  6a. 

Percentage  of  number  to  train,  458,  459. 

Statute  concerning,  606. 

Steps  for,  616. 

Switching,  cars  must  have,  889. 

Trains  too  long  to  operate  with  air  brake,  466. 

Bumpers — 

Assumption  of  risk  by  employee  as  to,  867. 

Burden — 

Car  used  in  interstate  commerce,  545. 

Car,  equipping,  burden  on  defendant  to  show,  867. 

Due  care  in  equipping  cars,  defendant  must  show,  827. 

Excuse  for  not  equipping,  defendant  must  show,  419,  note  3,  497,  498,  453. 

Government  has  to  show  car  was  not  equipped  as  statute  requires,  495, 

728. 
In  what  respect  appliance  out  of  repair,  868. 
Plaintiff  in  action  to  recover  damages  for  injury,  867. 
Preponderance  of  evidence,  728. 

Rests  on  government  to  .show  defects,  740,  744,  752,  760. 
Right  to  move  car,  453,  497,  498. 


INDEX    TO   SAFETY   APPLIANCE   ACT.  997 

[References  are  to  pages.] 
C. 

Caboose  Cars- 
Equipment,  639  to  646. 

Care- 
Burden  to  show  diligence  in  equipping  car,  867. 
Cars,  see. 

Defect  not  discoverable,  708,  711,  786. 
Diligence  in  repairing  no  defense,  728,  760,  772. 
Duty  to  equip  cars  is  absolute,  420,  426,  727,  745,  758,  760,  786,  824, 

827,  840,  867. 
Inspection,  degree  to  be  used,  708,  711. 
Ordinary  care  used,  no  defense,  722. 
Reasonable  care  used,  no  defense,  787,  796. 

Cars- 
Air  brakes,  see. 

Bad  order  card,  placing  on,  no  defense,  411,  791- 
Belt  railway,  using  defective  car  on,  367,  735,  821. 
Both    ends   of   cars   must   be   equipped,    745,    750,  763,  768,  772,  823, 

840. 
Brakes,  see. 

Burden  to  show  right  to  move,  453. 
Care,  see. 
Couplers,  see. 

Defect  in,  undiscoverable,  805. 
Defined,  395. 

Diligence  in  discovering  defects,  420,  426. 
Distance  car  hauled  immaterial,  350,  364. 
Drawbars,  see. 

Duty  to  repair  absolute,  745,  758,  760. 
Electric  cars  subject  to  statute,  398. 

Employee  putting  out  of  order  is  act  of  railway  company,  760,  772. 
Empty  cars  must  be  equipped,  284,  note  e,  398,  399,  729,  847. 

in  interstate  train,  250,  292. 
Equipping  according  to  statute,  must  be,  422,  806. 
Foreign  car,  defendant  hauling  over  its  line,  840. 

not  bound  to  receive  when  defective,  411,  772. 
Four-wheeled  car,  400. 
Handbrakes,  must  have,  415. 
Handbrakes,  see. 
Handholes,  see. 


998  INDEX  TO  SAFETY  APPLIANCE  ACT. 

[References  are  to  pages.] 

Cars — Continued. 

Hauling  in  interstate  train,  371,  398,  722,  896,  901. 

not  essential  to  commission  of  offense,  370. 

over  another  line  of  railway,  375,  380,  note  45. 
Height  of  drawbars  differing,  404,  note  18. 
Inspection  of  continuous,  duty,  827. 
Insurer  of  equipment,  company  is  not,  827. 
Interstate  articles  carried  by  independent  express  company,  362. 

car  used  in  "connection"  with  intrastate  car,  371. 

freight  car  loaded  with,  398. 

must  be  equipped  according  to  statute,  847. 
Intrastate  car  on  interstate  railroad,  358. 
Knowledge  of  object  is  not  an  element  of  the  offense,  449. 
Ladder,  see. 

Lading  immaterial  to  constitute  offense,  722. 
Logging  cars,  400. 

Long  commodities,  loading  car  with,  415. 
M.  C.  B.  defect  card,  placing  on  car,  411,  791. 
Making  up  train,  369. 

Moved,  must  be  to  constitute  offense,  745,  750,  824,  827. 
Not  loaded  with  interstate  traffic,  357. 
Permitting  to  be  hauled  over  defendant's  railway,  374,  755. 
Presumption  as  to  sufficiency  of  equipment,  426. 
Proof  of  use  in  interstate  commerce,  391,  note  59e,  392. 
Receiving  defective  car  from  another  railroad,  not  bound  to  do  so,  411, 

772. 
Repairing  cars,  see. 
Repairing  en  route,  728. 
Running  boards,  415. 
Running  boards,  see. 

Sand  cars,  hauling  defendant's  sand,  355,  note  10. 
Sill  steps,  415. 
Sill  steps,  see. 

Spur  track,  defective  car  on,  368. 
Switching  defective  cars,  an  offense,  366,  367. 
Temporary  suspension  of  transportation,  374. 
Terminal  tracks,  use  of  defective  cars  on,  367. 
Test  under  statute,  855. 
Train  is  test  of  statute,  357,  note  12d. 
Use  of  defective  cars  forbidden,  349,  .351,  370,  479,  772. 

in  interstate  commerce,  369,  371.  373,  352,  7iotc  6. 

what  is  a  use,  356. 

when  on  switch  track,  855. 


INDEX   TO   SAFETY   APPLIANCE    ACT.  999 

[References  are  to  pages.] 

Chains- 
Broken,  using  on  cars,  755. 
When  may  be  used,  893. 
When  statute  prohibits,  407. 

Colorado  Case — 

Railroad  wholly  within  state,  378,  379,  390. 

Common  Carriers — 

Defined,  344. 

Complaint — 

Interstate  commerce,  must  show  car  was  used  in,  703. 

Constitutionality  of  Statute — 

Hours  of  labor  statute,  506,  508,  510. 

Release  of  damages,  491. 

Resolutions  of  American  Railway  Association,  332,  note. 

Safety  Appliance  Act,  334,  847. 

Construction  of  Statute — 

Intent  of  Congress  to  be  ascertained,  791. 

Liberally  construed,  334,  439. 

Remedial,  statute  is,  847. 

Secret  intent  of  legislation,  389. 

Used  in  moving  interstate  traffic,  354,  note  7. 

Contributory  Negligence^ 

Comparative  negligence  when  case  not  based  on,  848. 
Defeats  action,  868. 
Defense  of,  still  in  force,  867. 
Knowledge  of  danger  by  employee,  867. 

Couplers  (Automatic)— 

Adjacent  cars,  couplers  defective,  no  excuse,  763. 
Automatic,  must  be,  400,  762,  867. 

locomotives  must  have,  659. 
Belt  railway  cars  must  have  automatic  couplers,  821. 
Both  ends  of  car  must  have,  406,  729,  745,  768,  772,  823,  840. 
Broken  so  can  not  be  used,  728. 
Coupling  by  impact,  must,  400. 
Difficult  to  use,  729,  770,  772. 
Drawbars,  see. 

Engine,  on,  below  minimum  height,  887. 
Height,  failure  to  maintain  at,  887. 
Insufficient  operation,  410. 
Kind  that  must  be  used,  402. 


1000  INDEX    TO   SAFETY   APPLIANCE   ACT. 

[References  are  to  pages.] 

Couplers  (Automatic) — Continued. 
Kinking,  760,  861. 

employee  going  between  car  to  adjust,  766. 
Locomotive,  front  end,  410. 
Models  of,  using  in  evidence,  878. 
Necessity  of  going  between  cars  to  couple,  405,  766. 
Negligence,  not  to  equip  car  with,  868. 

failing  to  use  diligence,  delinquency,  465. 
Order  of  Interstate  Commerce  Commission  concerning,  669. 
Permitting  car  to  be  hauled  with  defective  couplers,  755. 
Preparation  for  coupling,  410. 
Reasonable  effort  to  operate,  728. 
Shims  to  raise  couplers,  449. 
Stub  pilot  of  locomotive,  469. 
Sufficiency,  401,  405. 
Switching,  cars  must  have,  889. 
Uncoupling,  going  between  cars  to  make,  407,  703. 

Courts — 

Federal  question,  when  presented,  412. 

Removal  of  actions  from  state  court,  412,  488. 

State  courts  have  power  to  entertain  action  for  damages,  487. 

D. 

Damages — 

Amount,  847. 

Comparative  negligence,  when  does  not  reduce,  848. 

Suit  in  state  court  to  recover,  487. 

Validity  of  statute  concerning  releasing,  491. 

What  employees  may  recover,  468. 

Defect    in    Car — 

Knowledge  of  not  necessary  to  constitute  offense,  824,  829,  837. 

Defense — 

Burden  to  .show  right  to  move  car,  453. 

Door  Step — 

Order  of  Interstate  Commerce  Commission,  643. 

Drawbars — 

Couplers,  see. 

Height  above  rails,  408,  409,  611,  728. 
Order  of  Interstate  Commerce  Commission,  610,  611. 
Repairing  en  route,  728. 

Resolutions  of  American  Railway  Association,  332. 
validity,  332,  riole. 


INDEX    TO   SAFETY   APPLIANCE   ACT.  1001 

[References  are  to  pages.] 


Drawings — 

For  equipment  of  cars,  663  to  680. 


E. 

Electric  Cars — 

Subject  to  statute,  397,  398. 

Employee — 

Congress  may  protect,  722. 
Coupler,  difficult  to  use,  766,  768. 

putting  out  of  order,  railroad  liable,  772. 
Uncoupling,  going  between  cars  to  make,  703. 

Empty  Cars — 

Cars,  sec. 

jSIust  be  equipped,  356,  398,  399,  728,  847. 

Engine — 

Automatic  couplers,  must  have,  659. 
Couplers  on,  887. 
Front  end,  410. 
Locomotive,  see. 

Evidence — 

Disposition  of  cars,  848. 

Excuse,  burden  to  siiow,  497,  498. 

Expert  testimony,  498. 

concerning  grabirons,  904. 
Inspection  by  jury,  904. 
Inspector's,  weight,  496,  843. 

failure  to  inform  defendant  of  their  official  character,  877,  87J 

memorandum  made  by,  497. 
Jury  must  consider  all  the  evidence,  843. 
JModels  of  couplers,  using,  496,  877. 
Positive  and  negative,  relative  force,  828. 
Preponderance  sufficient.  868,  780,  787,  823,  827. 
Reasonable  doubt,  292. 
Recitals  in  defendant's  records,  848. 

Reconciliation  of  conflicting  statements,  instruction,  861. 
Satisfactory,  must  be  to  recover  penalty,  728,  740,  744,  750,  768. 
Sufficiency  to  recover  penalty,  292,  805. 
Weight,  848. 

Express  Company — 

Carrying  interstate  traffic,  362. 


1002  INDEX   TO   SAFETY   APPLIANCE   ACT. 

[References  are  to  pages.] 

F. 

Federal  Question — 

When  presented,  412. 

Federal  Court — 

Removal  of  case  to,  488. 

Flat  Cars- 
Equipment,  629. 

Freight  Car — 

Equipment,  681. 


Geddes  Case — 

Discussion  in,  376  to  378,  390. 
Denied  as  an  authority,  380. 

Gondola  Cars — 

Equipment,  622,  624,  627. 

Grab  Irons — 

Handholds,  see. 

Grip  Irons — 

Statute  requiring,  606. 

H. 

Hand  Brakes — 

Hopper  and  gondola  cars  must  have,  622. 

Rules  concerning,  607.  614  to  616,  622,  624,  625,  627,  629,  630,  632, 
636,    639,    646,    657. 
brake    steps,     616. 
Statute    requiring,    606. 

Handholds — 

Car  must  have,  414,  415. 

Coupling  lever  used  as,  question  for  jury,  843. 

Expert  testimony  concerning,  904. 

Failure  to  provide  or  repair,  451,  501. 

Interstate  Commerce  Commission  adopt  rules  concerning,   607,   610,   611, 

613. 
Intcrurban  cars,  903. 
Kind,  what  is  sufficient,  843. 


INDEX  TO  SAFETY  APPLIANCE  ACT,  1003 

[References  are  to  pages.] 

Handholds — Continued. 

Location  not  fi.xed  by  statute,  787. 

Long  commodities  on  cars,  415. 

Number  of  violations,  780. 

On  side  of  car  not  sufficient,  838. 

Order  of  Interstate  Commerce  Commission,  614,  619,  625,  626,  628,  630, 

631,  634,  G35,  637,  638,  640,  641,  644,  645,  646,  647,  648,  649,  650, 

651,  653,  656. 
Penalty  for  failure  to  equip,  501,  60S,  609. 
Repairing,  609. 

Rules  concerning,  619  to  621,  622,  624. 
Statute  requiring,  606. 
Street  cars,  904. 
Substitute,  452,  780,  787. 
Sufficiency,  413,  415,  455,  note. 

question  for  jury,  416. 
Train  defined,  353,  780. 
Where  to  be  put,  413,  415,  679. 

Handrails- 
Order  of  Interstate  Commerce  Commission,  658,  659. 

Haul- 
Defined,  353. 
Distance  defective  car  moved  immaterial,  364. 

Highway  of  Interstate  Commerce — 

Another  company  using,  375,  380,  note  45. 
Permitting  cars  to  be  hauled  over,  374. 
Railroad  devoted  to,  358. 

Hopper  Cars- 
Equipment,  622. 

Hours  of  Labor — 

Accidents  causing  delay,  700,  956. 

Act  of  God,  517,  700. 

Action  to  recover  damages,  539. 

to  recover  penalty,  539. 
All  employees,  applies  to,  698. 
Casualty,  517,  534,  700. 
Change  of  work,  525,  526. 

Commingling  of  intrastate  and  interstate  duties,  524. 
Congested  traffic,  529. 
Constitutionality  of  statute,  506,  510. 

state  statute,  508. 


1004  INDEX  TO  SAFETi'  APPLIANCE  ACT. 

[References  are  to  pages.] 

Hours  of  Labor — Continued. 

Construction  is  liberal,  513,  924. 

"Consecutive"  hours,  527. 

Continuously  operated  day  and  night,  699. 

"Continuous"  hours,  527. 

Continuity  of  service,  950,  953. 

Criminal  statute,  act  is  not,  924. 

Deadheading,  700. 

Defense,  539. 

Delay  in  starting  caused  by  another  train,  524. 

Economical  reasons  as  a  defense,  539. 

Emergency,  533,  956. 

what  is  not,  953. 
Employees  subject  to  act,  515. 

not  liable  to  penalty,  700. 
Engine  watching,  932. 
Extending  time  of  service,  956. 
Ferry  employees,  701. 
Fireman  watching  engine,  525. 
Hotbo.x  causing  delay,  522. 
Hours  for  labor,  521. 
Illness  of  telegraph  operator,  918. 
Inability  to  compel  employees  to  act,  514. 
Indefinite  respite  from  work,  528. 
Inspecting  engine,  521. 

Interstate  Commerce  Commission's  power,  700. 
Jury,  question  for,  541. 

Liability  of  railroad  to  penalty  absolute,  513. 
Meals,  time  of,  not  deducted  953. 
Negligent  injury  to  employee,  539. 
Occurrence  of  conditions  ordinarily  expected,  537. 
"Off  duty"  as  defined  in  statute,  516. 

when,  940. 
Office  continuously  operated,  531. 

keeping  open,  924. 

operated  only  during  daytime,  530. 

what  is  an  office,  699. 
"On  duty"  as  defined  in  statute,  516. 

what  is,  940. 
Operated  only  during  the  daytime,  699. 
Operator  at  local  station,  5.'y3. 
Orders,  .531. 

of  Interstate  Commerce  Commis.sion  concerning,  696. 


INDEX    TO   SAFETY   APPLIANCE    ACT.  1005 

[References  are  to  pages.] 

Hours  of  Labor — Continued. 

"Other  employee,"  as  used  in  section  two,  515. 
Passenger  delayed,  liability  for  delay,  540. 
Penalty,  action  to  recover,  539. 

amount  of,  540. 
"Period,"  as  used  in  statute,  533,  546. 
Permitting  overwork,  513. 
Proviso  to  section  two,  530. 

to  section  three,  534,  536. 
Purpose  of  statute,  512,  699,  924. 
Railroad,  to  what  kind  statute  applicable,  698. 
Release  from  duty  for  an  hour  and  a  half,  950. 

what  is,  940. 
Remedial,  statute  is,  512,  514. 
Reports,  requirements  of  Interstate  Commerce  Commission,  697. 

failure  to  make,  541. 
Rules  of  Interstate  Commerce  Commission  concerning,  698  to  702. 
Scope  of  statute,  514. 
Sidetracking  trains,  523. 
Stations,  530,  699. 
Statute,  692. 

Statutory  provisions,  505. 
Steam,  unable  to  raise,  522. 
Street  railway's,  700. 

Sudden  illness  of  telegraph  operator,  538. 
Suspension  of  operation  of  statute  for  a  given  trip,  536. 
Telegraph  operators,  530,  531,  699,  701. 

emergency,  953. 

sudden  illness,  53S,  918. 

trainmen  using,  702. 
Telegraph  office,  what  covered  bj'^  statute,  924. 
Ten  consecutive  hours,  698. 
Terminal  defined,  535. 

Time  delayed  can  not  be  deducted  from  period  of  time  of  service,  523. 
Towers,  530,  699. 

Towermen  and  switch  tenders  using  telephone,  533. 
Train  baggagemen,  702. 

despatchers,  937. 
Unavoidable  accident,  517,  534. 
Unbroken  intervals  of  time,  527. 
Voluntary  action  on  part  of  employee,  513. 
Watching  engine,  525,  932. 
Week,  533. 


1006  INDEX   TO   SAFETY   APPLIAKCE   ACT. 

[References  are  to  pages.] 

1. 

Inspectors — 

Discrediting,  596. 

Failure  to  disclose  defects  in  cars,  728. 

Informing  defendant  of  defects  in  cars,  need  not,  796,  801,  877,  878. 
memorandum  made  by,  as  evidence,  597. 

Instructions — 

Degree  of  care  required  by  defendant,  878. 
Refusal  of  one  covered  by  another,  878. 

Interstate  Car — 

"Connection"  with  intrastate  car,  371. 

Intention — 

Secret  intention  of  Congress,  interpretating  statute,  389. 

Interstate  Commerce — 

Air  hose,  employee  coupling,  engaged  in,  780. 

Belt  railway,  statute  applies  to,  367,  735,  821. 

Car  must  be  shown  to  have  been  used  in,  814. 

Freight  designed  for  another  state  not  yet  left  state  of  assignment,  376. 

Highway  of,  358. 

Illustrations,  349. 

Interterritorial  Act  of  1903,  351. 

Instrumentalities  of,  354,  note  7. 

Moving  car  in,  necessary,  745. 

Power  of  Congress  concerning,  386. 

Proof  that  car  was  used  in,  391,  7w1e  59e,  392. 

Railroad  wholly  within  one  state,  376  to  380,  714. 

Return  of  train  to  state  of  origin,  355. 

Statute  concerning,  414. 

Switching  foreign  cars,  797. 

Test,  346,  855. 

What  is,  346,  347,  715. 

When  begins,  801,  822. 

Interstate  Commerce  Commission — 

Order  concerning  cc}uipment  of  cars,  610. 
Rules  may  adopt  concerning  cars,  607. 

Interstate  Railroads — 

B.lt  lines,  307,  7.35,  821. 

Crossings  over,  386. 

Highway  of  interstate  commerce,  see. 


INDEX    TO    SAFETY    APPLIANCE   ACT.  1007 

[References  are  to  pages.] 


Interstate  Traffic — 

Car  used  in,  354,  369. 
Interstate  commerce,  see. 
What  is,  354. 

Interterritorial  Act — 

Equivalent  to  Act  of  1903,  351. 

Interurban  Railway — 

Subject  to  Act,  903. 


J. 


Jeopardy — 

Twice  in  jeopardy,  504. 

Judicial  Notice — 

Safety  Appliance  Act,  489. 

Jury — 

Contributory  negligence,  question  for,  856. 

Evidence,  all,  must  consider,  843. 

Handholds,  may  examine,  416. 

Hours  of  labor  statute,  520. 

Penalty,  action  to  recover,  498. 

Trial  by,  in  action  for  penalty,  498. 

Verdict  directing,  499. 

Whether  injured  servant  was  engaged  in  interstate  commerce,  412. 


Knowledge  of  Defective  Car — 

Not  necessary  to  commission  of  offense,  449. 

L. 

Ladders — 

Caboose  cars,  633  to  646. 

Car  must  have,  415. 

Freight  cars,  661. 

Gondola  cars,  622  to  629. 

Hopper  cars,  622  to  629. 

Locomotives,  652  to  660. 

Order  of  interstate  commerce  commission  concerning,  617,  624,  627,  628, 

629,  643,  650,  653,  667. 
Passenger  cars,  646  to  652. 
Rules  concerning,  607,  617  to  619. 
Statute  requiring,  606. 


1008  INDEX  TO  SAFETY  APPLIANCE  ACT. 

[References  are  to  pages.] 

Locomotive — 

Engine,  see. 

Equipment,  652  to  660. 

Front  end,  410. 

Ladders  on,  652  to  660. 

Stub-pilot,  using  on  as  an  act  of  negligence,  469,  note  3, 

M. 

M.  C.  B.  Defect  Card- 
Placing    on    defective    car   no    excuse   for    violating  statute,   411,   791. 
when  used,  411,  note  30. 

Medals — 

Statute  awarding  as  badges  of  honor,  556. 

N. 

Negligence — 

Automatic  couplers,  failure  to  use,  467. 
Brakes,  failure  to  use,  471,  note  6a,  406,  note  29. 
Burden  to  show,  867. 
Contributory  negligence  by  plaintiff,  477,  485. 

does  not  defeat  action,  485. 
Duty  as  to  cars,  422. 
Excuse  for  defendant,  none  alIov,-ed,   420,   423,   424,  722,   745,   758,   760, 

786,  824,  827,  840,  867. 
Failure  to  equip  car  with  couplers,  867. 
Handholds  defective,  455,  note. 
Penalty  not  dependent  upon,  824. 
Pleading,  sufficiency,  489. 
Proximate  cause  of  injury,  469. 
Removal  of  actions  to  Federal  Court,  488. 
State  courts,  actions  to  recover  damages,  487. 
Stub-pilot,  using  on  to  coi;stitute,  469,  note  3. 
Two  acts  combining  to  produce  injury,  486. 
What  employees  may  use,  408. 

P. 

Passenger  Cars — 

Equipment,  646  to  652. 

Penalty — 

Action  to  recover,  435,  492. 

is  a  civil  case,  493.  497,  750,  754,  760,  764,  768,  787,  791,  796,  801, 
805,  823,  827,  843. 


INDEX  TO  SAFETY  APPLIANCE  ACT.  1009 

[References  are  to  pages.] 

Penalty — Continued. 
Amount,  5(X). 

Burden  on  government,  492,  495. 
Criminal  action,  492. 
Evidence  sufficient  to  recover,  495,  805. 
Handholds,  failure  to  equip  car  with,  451,  501. 
Hauling  car  in  interstate  train,  796,  801. 
unequipped  car,  incurs  penalty,  768. 
Incurring,  762. 
Jeopardy,  504. 
Joint  action  to  recover,  494. 
Jury  trial,  entitled  to,  498. 
Knowledge  of  defect  in  car,  449. 
Operating  car  in  interstate  commerce,  729. 
Petition  of  government  to  recover,  494,  698. 
Presumption,  492. 
Proof,  sufficiency,  495,  805. 
Verdict,  directing,  499. 
What  must  be  shown  to  recover,  714. 

Plans— 

For  equipment  of  cars,  665  to  680. 

Pleading — 

Action  for  negligence,  489. 

Government's  petition  to  recover  penalty,  494,  698. 

R. 

Railroad — 

Defined,  345. 

Reasonable  Doubt- 
Evidence,  sec. 
Proof  beyond  need  not  be  made,  392,  823,  827. 

Release  of  Damages — 

Validity  of  statute,  847. 

Removal  of  Action — 
When  allowed,  412. 

Repairs — 

Burden  to  show  excuse  for  not  making,  419,  note  3. 
Construction  of  statute  concerning,  435. 
Diligence  in  discovering  defect,  420. 
in  making,  418. 


1010  INDEX   TO    SAFETY   APPLIANCE   ACT. 

[References  are  to  pages.] 

Repairs — Continued. 

Duty  to  make  it  absolute,  422,  763,  772. 

Hauling  car  to  shops  for,  441,  444,  763,  848. 

Immediate,  should  be  made,  763,  772. 

In  transit,  car  in,  805. 

Knowledge  of  defect,  not  necessary  to  offense,  420. 

Presumption  as  to,  426,  446,  449,  805. 

Sending  cars  to  repair  shops,  369. 

Shops  for,  necessity  to  have,  444,  note  lid,  449. 

Transit,  repairing  cars  in,  426,  445,  448,  805. 

When  must  be  made,  912. 

Repair  Point — 

Hauling  car  to,  893. 

Nearest  available  repair  point  defined,  893. 

Repair  Shops — 

Must  have  at  convenient  points,  444,  note  lid,  449. 

Reports- 
Requirements  of  interstate  commerce  commission,  695. 

Running  Boards — 

Car  must  have,  415. 

Order  of  interstate  commerce  commission  concerning,  616,  632,  636,  639, 
642,  657. 


Safety  Appliance  Act — 

Statute,  602. 

Safety  Railing — 

Must  provide,  631,  635,  638. 

Servant — 

Jury    determines    whether    engaged    in    interstate    commerce,    412. 
Railroad    liable    for    his    neglect,     404,     note    18. 

Shims — 

Use    of    to    raise    couplers,    455. 

Shops  for  Repairs- 
Must  be  at  convenient  points,  44,  note  lid,  449. 

Sill  Steps- 
Car  must  have,  415,  607. 
Order  of  interstate  commerce  commission  concerning,  607,  617,  633,  637, 

649,  651,  652,  655. 
Statute  requiring,  607. 


INDEX    TO   SAFETY   APPLIANCE    ACT.  1011 

[References  are  to  pages.] 

Spur  Track — 

Using  unequipped  ear  upon,  368. 

State  Courts- 
Action  in  to  recover  damages  for  negligence,  487. 

State  Legislation- 
Effect  on  Federal  statute,  340. 

Statute- 
Ash  pans,  690. 
Boiler  inspection,  683. 
Car,  meaning  of,  as  used  in  statute,  395. 
Constitutionality  of  Safety  Appliance  Act,  847. 
Construction  of  Safety  Appliance  Act,  3-32,  3-39,  435,  453,  847. 
Design  of  Safety  Appliance  Act,  333,  334,  354. 
Fifth  section  of  Safety  Appliance  Act,  409. 
Handholds,  606. 
Hours  of  labor,  692. 
Intrastate  commerce,  386. 
Judicial  notice  of,  539. 
Ladders,  606. 
Medals  of  honor,  556. 
Origin  of  Safety  Appliance  Act,  329. 

President  Harrison's  message  concerning  Safety  Appliance  Act,  329. 
Report  of  accidents,  555. 
Safety  Appliance  Act,  602. 
State  legislation  on  same  subject,  340,  414. 

Statute  of  Limitations- 
State  statute  controls,  491. 

Street  Railway — 

Not  subject  to  statute,  904. 

Stub-Pilot— 

Negligence  in  using,  469,  note  3. 

Switch- 
Using  defective  cars  upon,  365,  855. 
must  be  properly  equipped,  911. 


Tank  Cars — 

Equipment,  630,  639. 


1012  INDEX    TO    SAFETY   APPLIANCE   ACT. 

[References  are  to  pages.] 

Tenders — 

Equipment,  658. 

Terminal  Tracks — 

Use  of  defectively  equipped  cars  upon,  367. 

Test- 
Train  rather  than  cars,  357,  note  12d,  855. 

Train- 
Defined,  353,  780,  461,  461,  note  28. 
Equipping  with  brakes,  458. 
Making  up,  369. 
Test  under  Safety  Appliance  Act,  357,  note  12d.  855. 

Transportation — 

Temporary  suspensions,  374. 

U. 

Uncoupling  Levers — 

Order  of  interstate  commerce  commission  concerning,  621,  638,  647,  648, 
652,  654,  656. 

Use- 
Car  in  interstate  commerce,  370,  373,  398. 
Defective  car  an  offense,  772. 
Defined,  353. 


Verdict — 

Directing  in  action  to  recover  a  penalty,  499. 
Setting  aside,  reluctance  of  court  to  do  so,  847. 


W. 

Writ  of  Error — 

Lies  to  Circuit  Court  of  Appeals,  503. 


Yard- 
Movement  of  car  in,  366. 


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